                                                                                           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
   lthweatt@terrythweatt.com                 rpost@beckredden.com
   Joseph D. Terry                           Constance H. Pfeiffer
   State Bar No. 24013618                    State Bar No. 24046627
   jterry@terrythweatt.com                   cpfeiffer@beckredden.com
One Greenway Plaza, Suite 100                William R. Peterson
Houston, TX 77046-0102                       State Bar No. 24065901
(713) 600-4710                               wpeterson@beckredden.com
(713) 600-4706 (Fax)                         Parth S. Gejji
                                             State Bar No. 24087575
                                             pgejji@beckredden.com
                                          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
                                                                  rpost@beckredden.com
                                                                  Constance H. Pfeiffer
                                                                  State Bar No. 24046627
                                                                  cpfeiffer@beckredden.com
                                                                  William R. Peterson
                                                                  State Bar No. 24065901
                                                                  wpeterson@beckredden.com
                                                                  Parth S. Gejji
                                                                  State Bar No. 24087575
                                                                  pgejji@beckredden.com
                                                             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
      lthweatt@terrythweatt.com
      Joseph D. Terry
      State Bar No. 24013618
      jterry@terrythweatt.com
 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
   jplummer@plummerlawyers.com                  mhudgins@hudgins-law.com
     araval@plummerlawyers.com                   npetrelli@hudgins-law.com
  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
                                                           24 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
                                        706 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
5 (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
160 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




                                                2


                                                                                   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.



                                              3


                                                                                  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.


                                                4


                                                                                      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,
361 (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.




                                               5


                                                                                    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.




                                                6


                                                                                    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).




                                                7


                                                                                    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.

                                                8


                                                                                  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
596 (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.


                                                9


                                                                                     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
                                             706 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

                                                 10


                                                                                     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.

                                                   2


                                                                                           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.




                                                 3


                                                                                        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.

                                                   4



                                                                                            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.

                                                 5


                                                                                        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.




                                                   6


                                                                                         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


                                                  7


                                                                                          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
                                         706 Cordell St.
                                       Houston, TX 77009
                                     (713) 862-4913 -Fax
                                    Attorneys for Intervenor



                                                           Isl Russell S. Post
                                                                 Russell S. Post




                                               8


                                                                                    000329
TABA




       000330
                                                                     1




                               VOLUME 1 OF 1
                             REPORTER'S RECORD
2                          CAUSE NO. 2009-40925

3    PATTI WAGNER, AS GUARDIAN  *       IN THE DISTRICT COURT OF
     OF JENNY ANN WAGNER, AN    *
4    INCAPACITATED ADULT        *
         Plaintiff              *
5                               *
     And                        *
6                               *
     WYLETTE TAYLOR AS GUARDIAN *
7    OF DERRICK JAMES, AN       *
     INCAPACITATED ADULT        *
8        Intervenor,            *
                                *
9    vs.                        *       HARRIS COUNTY,   T E X A S
                                *
10   FOUR J'S COMMUNITY LIVING  *
     CENTER, INC., ANTHONIA     *
11   UDUMA AND GODFREY UDUMA    *
         Defendants.            *       269TH   JUDICIAL DISTRICT
12


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

15


16                      On the 13th day of January,   2012,   the

17   following proceedings came on to be heard in the

18   above-entitled and numbered cause before the Honorable

19   Dan Hinde,   Judge Presiding,    held in Houston,   Harris

20   County,   Texas.     Proceedings reported by stenographic

21   machine shorthand.

22

23

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




                                                               000331
                                                   2




     A P P E A RAN C E S:

2

3    Mr. L. Lee Thweatt
     SBN: 24008160
4    Mr. Joseph D. Terry
     SBN:  24013618
5    TERRY & THWEATT, P.C.
     One Greenway Plaza, Suite 100
6    Houston, Texas  77046-0102
     713.600.4710
7
     Mr. Russell S. Post
8    SBN: 00797258
     Mr. Robert H. Ford
9    SBN: 24074219
     BECK REDDEN & SECREST
10   1221 McKinney, Suite 4500
     Houston, Texas  77010
11   713.951.3700

12   COUNSEL FOR PLAINTIFF

13


14   Mr. Shelton Sparks
     SBN:  06507160
15   SHELTON SPARKS & ASSOCIATES,    L.L.C.
     706 Cordell Street
16   Houston, Texas  77009
     713.862.5533
17
     Ms. Tiffany C. Harvey
18   SBN:  24067343
     THE LAW OFFICE OF TIFFANY HARVEY
19   706 Cordell Street
     Houston, Texas  77009
20   83 2 . 498 • 7076

21   COUNSEL FOR INTERVENOR

22

23

24

25




                                              000332
                                           3




     AP PE AR AN C E S:

2
     Mr. James C. Plummer
3    SBN:  16075700
     Mr. Amar Raval
4    SBN:  24046682
     PLUMMER & KUYKENDALL
5    4203 Montrose Blvd., Suite 270
     Houston, Texas  77006
6    713.522.2887

7    Mr. David W. Holman
     SBN: 09902500
8    THE HOLMAN LAW FIRM, PC
     24 Greenway Plaza, Suite 2000
9    Houston, Texas  77046
     713.400.4840
10
     COUNSEL FOR DEFENDANTS
11

12

13

14

15


16

17

18


19

20

21

22

23

24

25




                                      000333
                                                                                     4




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

3

4                                                                             Page

5    PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . .           5

6    Calling of case . . . . . . . . . . . . . . . . . . . . . . .               5

7    Appearances of Counsel                                                      5

8    Plaintiff and Intervenor's Joint
     Motion for Entry of Judgment . . . . . . . . . . . . . . . .                6
9

10   Ruling of the Court . . . . . . . . . . . . . . . . . . . . . . . . .      69

11   Court Reporter's Certification . . . . . . . . . . . . . .                 75

12


13                                    * * * * * * * *
14


15


16

17

18


19

20

21

22

23

24


25




                                                                             000334
                                                                          5




                            P R 0 C E E D I N G S

2                     THE COURT:        The Court calls Cause Number

3    2009-40925. Patti J. Wagner versus Four J's Community

4    Living Center,    Inc.

5                     Can I have appearances of counsel for

6    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

10   behalf of the Plaintiff, Ms. Wagner.

11                    MR. FORD:       Robert Ford on behalf of

12   the Plaintiff, Ms. Wagner.

13                    MS. HARVEY:        Tiff any Harvey for the

14   Intervenor.

15                    MR.   SPARKS:      Shelton Sparks for the

16   Intervenor.

17                    MR.   HOLMAN:      David Holman on behalf of

18   the Defendants.

                      MR. PLUMMER:        Jim Plummer on behalf of

20   the Defendants,    Your Honor.

21                    THE COURT:        Good afternoon.     I

22   appreciate y'all's patience,          as a couple of the

23   earlier hearings went a little longer.              So thank you

~    for your patience.

~                     We're here on the Plaintiff and




                                                                   000335
                                                                       6



     Intervenor's Joint Motion for Entry of Judgment.

2    We've got a lot of substantial briefing on this.             I

3    have read the motion and the response and the reply

4    and looked at the cases.          So that's just to give y'all

5    a heads up on that.       But this is the Plaintiff and

6    Intervenor's motion,      so I will let you all proceed

7    first.

8                     MR.   POST:     Your Honor,   I appreciate it

9    and I'm happy to proceed in whatever way is simplest

10   for the Court.     We have a very straightforward motion

11   for entry of judgment on the verdict.            It seems to me

12   it might make sense to allow Mr. Holman to present his

13   substantive challenges,        and it may be more efficient

14   for the Court for us to respond to his argument.

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

16   prefer.

17                    THE COURT:       Would you like to go first,

18   Mr. Holman?

19                    MR.   HOLMAN:     Sure.

20                    THE COURT:       All right.

21                    MR.   HOLMAN:     Your Honor,   we saw

22   their motion for entry of judgment on the verdict;

23   and there were a couple of problems that we saw

24   initially.    Number one,      if Chapter 74 applies,     then

25   the damages must be reduced,         the noneconomic damages,




                                                                 000336
                                                                       7




     must be reduced from $14 million down to $250,000 per

2    claimant.   Number two,    they were asking for judgment

3    against Ms. Uduma personally; and there is no basis

4    for   judgment against Ms. Uduma personally.       Let me

5    address those in order.

6                    First,   the question of whether

7    Chapter 74 applies.      As you know,   this issue was

8    raised pretrial.    Mr. Plummer filed a motion to amend

9    his answers to allow him to assert Chapter 74, which

10   the Court recognized was relevant as to the damage

11   caps.   They -- the Plaintiff and the Intervenor filed

12   motions to strike that amended answer,       and the Court

13   took that up.    The Court allowed that amended answer,

14   and so Chapter 74 is in the case.

15                   Now, does Chapter 74 apply?      We think

16   that there is no question Chapter 74 applies;        and let

17   me go through the analysis,     if I can.    First of all,

18   there is in black and white in the Civil Practice and

19   Remedies Code a statement about what constitutes a

20   health care institution.      And it says that a

21   health care institution is "a home and

22   community-based services waiver program for persons

23   with mental retardation adopted in accordance with

24   Section 1915(c) of the federal Social Security Act,          as

~    amended."




                                                              000337
                                                                      8




                      Now,   there is no dispute in this record

2    that Four J's is a home and community-based services

3    program for the treatment of mentally retarded

4    persons,    as authorized by DADS under the charter of

5    the State of Texas.       The reason that there is no

6    dispute about that is that every single document

7    almost every single document discusses that Four J's

a    is a home and community-based services program.         There

9    is -- we presented the Court in our response to             to

10   the brief filed by the Plaintiff,      Wagner,   we filed

11   excerpts from all the exhibits that talk about

12   Four J's being a home and community-based services

13   program,    an HCS program,   for mentionly retarded

14   adults.

15                    Then there was -- we also presented the

16   Court with the reference to the testimony of Ms.

17   Wagner,    who said that she was putting Jenny into

18   transferring Jenny to Four J's which was an HCS

19   program.    We also presented the Court with references

20   to the testimony of other folks,      such as Ms. Uduma,

21   Ms. Obichuku and Mr. Kern,      all of whom testified about

22   HCS and HCS policies and also the regulation by DADS.

23                    We also presented the Court with the

24   reference to Mr.    Kern's expert report in which

25   Mr.   Kern said Four J's is a home and community-based




                                                             000338
                                                                               9




     services program,          services facility,        HCS facility.

2                        The Texas Administrative Code 40,            Texas

3    Administrative Code 9.153 defines an HCS program as a

4    home and community-based services waiver program as

5    authorized by Section 1915(c) of the Social Security

6    Act.

7                        THE COURT:       What provision is that

s    again?

9                        MR.    HOLMAN:    That's 40,

10   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

15   the other administrative code provision which further

16   defines the HCS program; and that is 9.154(a), which

17   states,    "The HCS Program is a Medicaid waiver program

18   approved by the Centers for Medicare and Medicaid

19   Services    (CMS)    pursuant to 1915(c) of the Social

20   Security Act.        It provides community-based services

21   and supports to eligible individuals as an alternative

~    to the ICF/MR Program," which is the intermediate

23   facility program.          That would be similar to the state

24   school program.           "The HCS Program is operated by DADS

25   under the authority of HHSC."                That's in the 40,    Texas




                                                                       000339
                                                                                           10



     Administrative Code,                  Section 9.154(a).

2                           Now,     so there is no dispute that

3    Four J's -- and there was never any dispute in the

4    record of this case during the trial of the case

5    that Four J's operated as a home and

6    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

9    services waiver program for persons with mental

10   retardation adopted in accordance with Section 1915(c)

11   of the federal Social Security Act,                         11
                                                                      is a health care

12   institution.           And then we turn to the next section

13   which defines a health care provider; and a health

14   care provider is defined as including,                            under

15   (12) (A) (vii),        11
                                 a health care institution."                   So if you

16   are a health care institution you qualify as a health

17   care provider under Chapter 74.                          Thus,    we don't think

18   that there is any dispute in the record and there can

19   be no dispute in the record that Chapter 74 applies to

20   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

22   held in the same way.                       They have held that the

23   the -- the nature of this entity is a home and

24   community-based services program for mentally retarded

25   adults;      and,    therefore,              it is a health care provider.




                                                                                      000340
                                                                        11




                      Now,    the more difficult question for you

2    is whether Ms. Uduma is a health care provider.           Now,

3    on a blank slate,       if this were being written on a

4    blank slate,    there could be no question that as a

5    matter of law Ms.       Uduma is a health care provider.

6    And the reason for that is that the statute in

7    unmistakeable terms says that an owner,        a director,    an

B    employee of a health care provider is a health care

9    provider.     We know from the undisputed testimony that

10   was given by both the Plaintiffs and the Defendants in

11   the trial of this case that Ms. Uduma is the owner of

12   Four J's and she is the CEO of Four J's and that she

13   is the president of Four J's.        So she would qualify,

14   on a blank slate,       as a health care provider under this

15   statute,    no question.

16                    The question arises because at the time

17   that the Court in pretrial was wrestling with the

18   issue of whether to grant the motion to amend,

19   the Court -- they raised the question about whether

20   Chapter 74 applied to Ms.       Uduma because the

21   argument -- our argument was that she was being sued

22   as a premises owner.       Mr. Plummer said,   I agree with

23   you,   I don't think Chapter 74 applies.       And he

24   went further.     He said,    we are not going to assert any

25   remedies,    any rights,    defenses for Ms. Uduma under




                                                               000341
                                                                                  12



     Chapter 74.

2                       Now,    they have taken the position that

3    that is a judicial admission and that bars him from --

4    bars Ms. Uduma from arguing that she is a health care

5    provider under Chapter 74.             I was troubled by the

6    statements that Mr. Plummer made as well.                 And,   you

7    know,   I made no secret of that to Mr. Plummer when

8    I saw it because I thought:             Well,   gosh,   you know,      you

9    made these statements; the Court heard these

10   statements.        But then I started looking into the law

11   of judicial admission.             The law of judicial admission

12   is that you can judicially admit a fact but you can't

13   judicially admit a matter of law.               The idea is,     I

14   can't judicially admit,            for example,   that the Tort

15   Claims Act doesn't apply to the City of Houston.

16   That's not subject to judicial admission because it is

17   a question of law.

18                       THE   COURT:     Step away from the Tort

19   Claims Act because that brings in the issues of

20   sovereign immunity which also brings in the issues of

21   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

25   example.     There is a case that we cited where there




                                                                          000342
                                                                             13



     were deemed admissions,       and one of the deemed

2    admissions was that the defendant breached the

3    contract.    Another one of the deemed admissions was

4    that defendant owed a commission.            And the

5    Court looked at that as judicial admission and said it

6    doesn't qualify as a     judicial admission because it's

7    admitting a question of law.         And you can't,         in

a    judicial admission,     admit a question of law.             So those

9    deemed admissions,     the Court said,       were of no effect.

10                   We cited a number of other cases

11                    THE COURT:     So lawyers who make

12   arguments in court can't bind their clients as to the

13   concessions they make?        Say you are in oral argument

14   and you concede that,     well,    Your Honor,       yes,   this law

15   does not apply in this context.            They can't be bound

16   by that concession?

17                   MR.   HOLMAN:     Well,    you know,    I -- and

18   that's what I had trouble with,           as well.     I mean,

19   frankly,    I was -- I was troubled with the idea of

20   Mr. Plummer representing to you that Chapter 74 didn't

21   apply in that situation.        What I did was I looked at

22   it under the concept of judicial admission.                 If -- if

23   I were to judicially admit,        as,    you know, Mr. Plummer

24   did,   that Chapter 74 doesn't apply to Ms. Uduma

25   and Chapter 74 as a matter of law applies to




                                                                      000343
                                                                           14



     Ms. Uduma,    I don't think that judicial admission has

2    any effect.     I think you can in certain circumstances,

3    you -- you can simplify your case by eliminating

4    certain claims and that sort of thing.            Certainly,    you

5    know,   there are ways you can stipulate and abandon and

6    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,

9    well,   if Mr. Plummer hadn't said that we would have

10   accepted the Court's offer to continue trial because

11   that did shape our trial strategy and the way we

12   approached presenting evidence and arguing to the

13   jury?

14                    MR.   HOLMAN:     I,   you know -- frankly,    I

15   have no response to that.          I think that -- that

16   probably -- were I arguing on their behalf,           I would

17   probably argue judicial estoppel.            I would say that,

18   you know,    they relied upon that because he made that

19   statement and therefore he should be judicially

20   estopped from taking the contrary position.            But,    you

21   know,   the argument that they made was judicial

22   admission; and,    you know,      frankly,   I'm just addressing

23   the argument that they made.

24                    I believe that what we have to do is

25   look at the statute.       And,    you know,   if we are going




                                                                   000344
                                                                      15



     to hold that Four J's is indisputably a health care

2    provider,   which I think we have to do,         then the

3    question is:    Is the owner of Four J's subject

4    to Chapter 74 or not?

5                    I think Mr. Plummer's problem was that

6    when he looked at it he was thinking that they were

7    suing her as a premises owner and that fell outside

B    the statute.    And,    you know,   I think there was some

9    confusion on his part,      perhaps; but I don't think that

10   that changes the nature of how the statute applies.

11   But --

12                   THE    COURT:    Well,    let me just stop you

13   there.

14                   MR.    HOLMAN:    Okay.

15                   THE    COURT:    What record suggests that

16   they were not suing her as the premises owner?

17                   MR.    HOLMAN:    Nothing.

18                   THE    COURT:    Then why do -- why do

19   we care about whether Chapter 74 applies?

20                   MR.    HOLMAN:    Well,   because if she is

21   a health care provider then it becomes a health care

22   liability claim even though they are suing her as,

23   quote,   a premises owner.

24                   THE    COURT:    How is that?     How is she a

25   health care provider as a premises owner?




                                                                 000345
                                                                              16



                      MR.   HOLMAN:    Because -- well,      Four J's

2    is a health care provider.           She,    being an employee,

3    whatever,    of Four J's is a health care provider.                 If

4    they sue her for her failure to provide safety for the

5    people that were the residents,             the patients,    then

6    that's a health care liability claim.              You know,    we

7    presented those -- all of these cases that talk about

8    health care liability claims and what constitutes a

9    health care liability claim.           And there is a number of

10   cases,    including the Marks case that they rely upon

11   and the Omaha Healthcare case,          the spider bite case,

12   that the Court is familiar with,             where the Court

13   said -- where they tried to make the distinction,

14   well,    it's just a premises claim,          it's not a health

15   care liability claim.       And the Court said,        no,    it's a

16   health care liability claim because the central focus

17   of this claim, the underlying nature of the claim is

18   that you are suing them for failing to provide safety

19   for the residents.

20                    THE COURT:      So if someone -- let's take

21   a nurse.     She owns her own house.           Someone trips and

22   falls in the house and scrapes their knee.              And she

23   goes,    "Oh, wait.    I've got the Bactine in my first aid

24   kit and the Band-Aid."        She goes and disenfects it,

25   puts a Band-Aid on it.        But,    unbeknownst to the person




                                                                     000346
                                                                        17



     who is injured,   the house is infected with staph;         and

2    he comes down with a staph infection.          And he files a

3    premises liability case, defective condition,           that the

4    house had a staph infection.        The very fact that,     just

5    because she is a nurse,       she would not be subject to

6    the ordinary premises liability standards for whether

7    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

10   you have a situation where you have a nurse and there

11   is a premises problem,    somebody falling --

12                  THE   COURT:    And add in that she works

13   for a hospital --

14                  MR.   HOLMAN:    Okay.

15                  THE   COURT:    -- a health care

16   institution.

17                  MR.   HOLMAN:    Right.     And somebody falls

18   down in her house.     That is a,      definitely,   a premises

19   claim.

20                  THE   COURT:     She is an employee of

21   the heal th care institution.

22                  MR.   HOLMAN:    Yes.

23                  THE   COURT:     She is a health care

24   provider.

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




                                                                000347
                                                                      18



     at the underlying nature of the claim.         The

2    underlying nature of their claim is they're claiming

3    that these folks were residents of the entity which is

4    a health care provider and that these folks were not

5    provided safety.

6                        The best case on this -- and,    you know,

7    I discussed it in the brief; but,       you know,    it was

a    discussed pretrial,       which is the brown recluse spider

9    case.     What happened is it's a nursing home,       and a

10   spider bit one of the residents.        And the plaintiff

11   sued saying,    "Well,    you didn't do proper pest control.

12   And,    you know,    you should have prevented spiders from

13   getting in here."        And that's a premises claim.

14                       The Court analyzed that and they said,

15   "Look,    if somebody is in your       in your facility and

16   they are in custodial care in your facility and you

17   are responsible for providing their fundamental

18   needs --" What are their fundamental needs?           Health

19   and safety.     And if your argument is you didn't

20   provide them safety,       then that's a health care

21   liability claim.        And that's what we're -- that's what

22   we're faced with here.

~                        The arguments and all of

24   their arguments,       the underlying nature of all their

25   arguments is:        They were patients and you




                                                               000348
                                                                              19



     didn't provide them safety from the fire that

2    occurred.      You didn't provide them protection from

3    this fire,     protection from this harm.       You didn't

4    provide for their fundamental needs.           That's a health

5    care liability claim.

6                      Now, whether they are suing Ms. Uduma as

7    a,   quote,   premises owner or not,    the underlying

a    nature of the claim is the same as far as Ms. Uduma

9    goes.

10                     But let me address,    if I may,       because

11   this -- this feeds right into the other argument.                  Say

12   Chapter 74 doesn't apply to Ms. Uduma.            What are we

13   left with?      They want to sue Ms. Uduma individually.

14   They want to get liability against her,           a

15   judgment against her personally as a,          quote,     premises

16   owner.    And you have seen that.       I mean,       you have seen

17   that in their,     in their pleadings.       You have seen it

18   in their questioning of Ms. Uduma.

19                     They said,   "Ms. Uduma,    you realize you

20   are being sued as a premises owner?"           You saw that in

21   the charge conference and in the language,              in the

22   language that they put in the charge about how they

23   wanted liability against her with respect to the

24   condition of the premises,       so forth.

25                     Can Ms.   Uduma be liable as a premises




                                                                      000349
                                                                          20



     owner in this situation?            And I   submit to you that the

2    case law states that she cannot be liable as a matter

3    of law.

4                       Now,    the case that I cite is the

5    same case that they cite.            It's the landmark case.

6    It's the Johnson County Sheriff's Posse versus

7    Endsley.       It's a Texas Supreme Court 1996 case.          And

a    what that case says is that a lessor has no duty to

9    protect one from dangerous conditions that occur on

10   the premises after the,           after the place has been

11   leased.     There is no duty.         Once the lessor leases the

12   premises,      there is no duty.       And the Court said,    the

13   reason for this is because she has relinquished

14   possession of the property; therefore,             we will not as

15   a matter of law impose a duty on her.

16                      Now,    there are three exceptions to that

17   rule,   that general rule.          And the three exceptions are

18   burdens that the plaintiff has to prove,             according to

19   the Endsley case.          The only exceptions that they have

20   are these three:          One,   to show negligent repairs.

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

22   concealed defects.          No allegation or proof of that.

23   Or,   third,   that she retained control over a portion of

24   the premises on which the injury occurred.              There is

25   no allegation or proof of that.




                                                                   000350
                                                                         21



                      Now,    in their brief they alleged -- in

2    their brief they allege that she retained control of

3    the fire safety.        And they tried to establish that by

4    showing that she took the fire marshal around and that

5    she was the one that dealt with the OMNI group that

6    did the fire alarms.        The first problem with that

7    analysis is that there is no showing that she retained

8    any control over a portion of the premises after

9    she leased the property to Four J's.             And there is no

10   evidence whatsoever about that,            but the second problem

11   is that the evidence establishes the contrary of that

12   proposition.

13                    She was asked directly about taking the

14   fire marshal around and "Didn't you do that as the

15   premises owner?"        She said,   "No.     I had leased the

16   property."

17                    They asked Mr. Overholt,         "Well, didn't

18   you   "     I can't remember the exact words; but it was

19   something like,    "What was your relationship with

20   Ms. Uduma?"     He said,    "I knew her as the principal of

21   Four J's.     Did she ever mention to you that she was

22   the property owner?"        He said,   "I assumed that,    but

~    she never used those words."

24                    There is no evidence whatsoever that she

25   as the premises owner,       apart from -- you know,      as




                                                                    000351
                                                                       22



     the premises owner retained any control over fire

2    safety as if they were retaining control over the

3    premises.    So,    under the Endsley case      and the

4    Endsley case is clear -- there are no exceptions that

5    apply to the general rule.         And the general rule is

6    that she has no duty as a lessor; and,        therefore,    she

7    has no duty and cannot be personally liable for this

a    judgment.

9                       Now,   they have also cited and we cited

10   as well Restatement provisions 360 and 361.         And I

11   think those are important too because the Restatement

12   provisions talk about retention of part of the land.

13   And both of those provisions talk about retention of

14   part of the land.         That's the way that a lessor

15   becomes liable,      if the lessor retains control over

16   part of the land.         And there is no evidence whatsoever

17   that she ever retained control over part of the land,

18   as if,   you know,    the lessor would retain control over

19   common areas,      for example.

20                      Now,   they have cited a case called the

21   Osti case.    And,    if I may,   that's the only case that

22   they cited that they say supports liability in this

23   situation against Ms. Uduma.         Osti was a case in which

24   the fellow was in a third-floor apartment that didn't

25   have any exits.       And the Court said that's a




                                                                000352
                                                                      23



     structural issue.       The lessor had a duty to provide a

2    fire escape,    and the lessor didn't do it.       So the

3    lessor can be liable for failing to provide a

4    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

7    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

10   door that would not open?

11                    MR.   HOLMAN:   Well,   it's a back door that

12   was locked,    that had a dead bolt; but that's Four J's
13   problem.     Four J's was the occupier of the premises.

14   Once she relinquished possession to Four J's,         Four J's

15   was responsible for all of that stuff.          There is no

16   allegation here that this was a third-floor apartment

17   without a fire escape.

18                    So that -- that case stands for a

19   limited proposition that deals with structural

20   problems.     And there are no such problems that are

21   alleged in       and that case doesn't have any -- I

22   couldn't find any other cases that relied on that

23   case.   But I found plenty of cases that relied on the

24   Endsley case that say that there is no duty on the

25   lessor in this particular type of situation.




                                                                 000353
                                                                       24




                      Now,   the other thing that I saw was that

2    they have cited something in the brief called the

3    International Residential Code.       And we tried to look

4    through the record of the trial and couldn't find any

5    reference to the International Residential Code.          So I

6    don't know where that comes from or how it applies or

7    would be promulgated or how -- how it would apply to

a    Ms. Uduma in this situation.       It might apply to

9    Four J's because Four J's was the occupier of the

10   premises, but it wouldn't apply to Ms. Uduma

11   because she had already leased the premises to

12   Four J's.

13                    Now,   there is another argument that's

14   made about Ms. Uduma personally, which would apply,           I

15   guess,   if Chapter 74 didn't apply to Ms. Uduma

16   personally.     And they say that,   that she could

17   be liable personally as the agent of Four J's.         And,

18   first of all,    that was not what was tried.    As the

19   Court knows they tried her being a premises owner.

20   That's how they framed their case.       That's how they

21   told the jury that they were trying their case, that

22   she was being sued personally as a premises owner.

23   They never sued her as an agent.

24                    They did have alterego allegations,      but

25   they never tried those alterego allegations.




                                                             000354
                                                                       25



                     There is a problem with them trying

2    to hold her personally liable as the agent of the

3    corporation.    There is a series of cases -- Leitch

4    versus Hornsby,   Chron Tri versus J.T.T.,   Texas Supreme

5    Court cases -- that said that if the corporate agent

6    is accused of violating the same duty that is owed by

7    the corporation then you can't hold the corporate

a    agent personally liable.    And there is a number of

9    cases that have followed that.    And,   you know,    the

10   idea is that they have to have some independent duty

11   that was violated.    And there was no evidence or proof

12   of some independent duty that was here.      But more

13   importantly -- and I pointed this out at the end of

14   the argument -- is the illogic of it.      If it's true

15   that Four J's is a health care provider whose damages

16   are limited to 250,000 per claimant and their argument

17   now is that Ms. Uduma was an agent of Four J's,        under

18   the statute an agent of Four J's is also a health care

19   provider and would be subject to the damage caps.           But

20   what they are saying in their brief is you should hold

21   that Four J's -- that damages are limited for

22   Four J's,   but they are -- you can get unlimited

23   damages against Ms. Uduma as the agent of Four J's.

24   And that doesn't make any sense at all.      And it

25   is certainly not the proper construction of the




                                                             000355
                                                                            26



     statute in that circumstance.

2                     If they are saying that she

3    is personally liable as a premises owner,            that's one

4    thing.     We can deal with that argument.          But if she

5    tries to say -- if they try to say she is an agent of

6    Four J's,    that takes us right back into Chapter 74.

7                     So what we are asking the Court to do

8    this is their motion for entry of judgment -- we are

9    asking the Court,      if the Court enters judgment, to

10   reduce the damage caps to 250,000 per claimant.             And

11   it's just the noneconomic damages,            the 14 million,

12   reduce those down to 250,000 per claimant, pursuant to

13   74.301,    which is the limitation on noneconomic

14   damages.     And then,   do not enter judgment against

15   Ms.   Uduma personally because there is no basis for it.

16                    THE COURT:      Are you still persisting in

17   this argument that because there was no expert report

18   as to Ms. Uduma that the claims against her should be

19   dismissed?

20                    MR.   HOLMAN:    No.   No,    we're not.   I had

21   made that argument before I        saw your comments in the

22   pretrial.     And your comments in the pretrial made it

23   clear that that expert report argument was waived,               and

24   we're not raising that anymore.

25                    THE COURT:      All right.




                                                                 000356
                                                                    27



                    All right.       I've got a couple questions

2    for you.

3                   One of the arguments that the Plaintiffs

4    make was that there was a lack of evidence that

5    Four J's was actually licensed at the time of the

6    fire.   What evidence do you have in the record that

7    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

10   a license on file.      But -- and,   as we said,    the

11   undisputed evidence is that they were operating as an

12   HCS facility under the auspices of DADS.          Everybody

13   admitted and all the documents admitted that they are

14   operating under,     under the authority of DADS.

15                  THE    COURT:    Don't you have to have a

16   license to operate under the authority of DADS?

17                 MR.    HOLMAN:     Of course.   The,   the

18   situation in Texas is you can't operate a facility as

19   an HCS facility without a license.        And,   believe me,

20   if we -- if there was any dispute.about whether we had

21   a license -- which there wasn't throughout the

22   trial -- if there was any dispute,       they would have

23   brought that up and said,       you are violating the

24   regulations because you are operating this facility

25   without a license.      There was never any evidence or




                                                                000357
                                                                            28




     any dispute that we were properly authorized to act as

2    an HCS facility.       And all the documents support that.

3                     THE COURT:       All right.       Those are my

4    questions.

5                     Mr. Post.

6                     MR.   POST:     Yes,   sir.    Your Honor,    I

7    would like to begin with the Chapter 74 question

8    regarding Four J's.       I think it's important to step

9    back for one moment and see the big picture of the

10   case,    see how the issues interact,          because Four J's

11   was found 60 percent responsible for this incident.

12   So it would be jointly and severally liable.               Four J's

13   does not have any duty argument here.              Four J's is

14   depending on its ability now to establish

15   the applicability of Chapter 74.               If it fails in that

16   effort,   then the Plaintiff and the Intervenor

17   are entitled to a      joint and several judgment of the

18   uncapped damages with respect to Four J's.               We still,

19   obviously, would want the judgment with respect to

20   Ms. Uduma personally.          But that would essentially be a

21   roadmap to a decision of the case.

22                    THE COURT:       But that would be after

23   60 percent       the percentage liability application,

24   right?

25                    MR.   POST:    With respect to whom,         Your




                                                                        000358
                                                                        29



     Honor?

2                     THE   COURT:    Four J's.

3                     MR.   POST:    No.     Four J's is jointly and

4    severally liable because

5                     THE   COURT:    But I'm saying that --

6    you're not saying that you could get 14 million

7    against Four J's?       You are saying 60 percent

a    of 14 million?

9                     MR.   POST:    That would include -- we

10   would be entitled to recover everything.

11                    THE   COURT:    That's with the 6 0 percent

12   of --

13                    MR.   POST:    Yes,    because under Chapter 33

14   a defendant that is found more than 50 percent liable

15   is --

16                    THE   COURT:    All right.

17                    MR.   POST:    We wouldn't be entitled to

18   recover twice,    obviously.         We would never try to do

19   that.

20                    THE   COURT:    It would be up to Ms. Uduma

21   then to seek contribution for --

22                    MR.   POST:    Exactly.     That's exactly

23   right.

24                    THE   COURT:    I    see.

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




                                                                   000359
                                                                       30



     question of whether Four J's is entitled to invoke

2    Chapter 74 because this is a question of conclusive

3    evidence.    It's not a legal question.

4                    Mr.   Holman has cited the statutes that

5    make an RCS program fall within the definition of a

6    health care institution; but the key is he has to

7    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

10   repeatedly there was no dispute about this issue,           but

11   this is not our burden.      It is the Defendants' burden

12   of proof to prove that they are entitled to invoke

13   this statute.    They had the burden to prove it,      and

14   they did not prove it at trial.         And they did not ask

15   for   jury findings on it.    And so,    in this posture,

16   they had the obligation under Rule 279 to establish it

17   conclusively.    If it's not conclusively established

18   that Four J's was a certified RCS program at the time

19   of this incident,     that defense is waived and they

20   cannot invoke Chapter 74.

21                   The proof that you see in their motion I

22   think underscores their full awareness that they did

23   not prove this fact at trial.      The issue never came

24   up.   When they filed their original response to our

25   motion for   judgment,   they simply asserted that they




                                                             000360
                                                                          31



     were an HCS program without proof.            We filed our

2    response and pointed out that they hadn't established

3    that fact.     They had a month in which to dredge the

4    record for that evidence.         And they don't have

5    evidence that conclusively establishes that.

6                    Here's what I want to emphasize.             They

7    have given you four categories of evidence that they

a    say establishes that they are an HCS program.              None of

9    that evidence is conclusive.         And it's important to

10   look at this carefully in light of the conclusive

11   evidence standard.       Mr. Holman correctly cites a

12   couple of cases that have found HCS programs to be

13   health care institutions; but,           importantly,   in neither

14   of those cases was the Court faced with the question

15   of whether the defendant proved it was an HCS program.

16   This is that case.

17                   Now,    the first category of evidence that

18   they cite is a series of exhibits that referred to

19   Four J's as an HCS program.         That was their

20   Appendix A.    All that is is a series of internal

21   documents from Four J's that internally brand it as an

22   HCS program.    But those documents don't say anything

23   about certification; they don't say anything that

24   establishes that,      in fact,   Four J's was certified at

25   the time of this incident;        and,    in fact,   they don't




                                                                   000361
                                                                     32



     conclusively establish even that it's an RCS program.

2    They simply say Four J's holds itself out as such.          A

3    fact finder would not be obligated to believe that

4    evidence.   At best,   that would have been probative

5    evidence to put before the jury.      But they didn't ask

6    the jury to make a finding,     and that's not

7    conclusive evidence of anything.

8                   In a moment,   when I deal with the

9    Web site evidence,     I'm going to walk you through the

10   way the administrative scheme works; and you will

11   see there is a certification procedure that

12   involves annual reviews,    relicensing.   And there is a

13   certificate that has to be issued.      They haven't dealt

14   with any of that with these internal exhibits.

15                  Their second category of evidence they

16   claim is trial testimony.      I read every excerpt of

17   that trial testimony today.      None of it says that

18   Four J's was a certified RCS program.      Yes,   there are

19   references to the procedures of RCS programs.        Yes,

20   there are some references to a variety of regulatory

21   proceedings.   But nothing in that testimony ever

22   specifically says RCS is a certified program.        And

23   even if it did,   it's within the province of the trier

24   of fact to believe or disbelieve contested testimony.

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




                                                             000362
                                                                   33



     witnesses on that issue if they had ever put a witness

2    up who gave that testimony.       So that can't be

3    conclusive evidence.

4                    I would emphasize,    among the excerpts

5    that they cited,      from the October 18th trial testimony

6    was the testimony of the Plaintiff's expert Mr. Kern,

7    who at Pages 256 to 261 talked some about the

a    certification procedure and the fact that there

9    are annual reviews and that an institution can loose

10   its certification.      And so there is in fact converting

11   evidence in the record that would allow a fact finder

12   to question whether this institution was certified.

13   That's certainly not conclusive evidence as they have

14   to prove it.

15                   The third category of evidence -- and

16   this is,   I think,   the real evidence of a guilty

17   conscience -- is they try to use the Plaintiff's

18   Chapter 74 expert report to prove that they were an

19   HCS program.    As the Court knows,    that expert report

20   is not in evidence; and so it cannot be used now to

21   establish their defenses as a matter of law.

22                   Second,   under Chapter 74,   which they

23   are trying to rely on,     no expert report can be used

24   for any purpose.      They would not be trying to rely

25   on that expert report if they believed they had proved




                                                            000363
                                                                    34



     this defense as a matter of law at trial.       They know

2    they didn't.

3                     So that brings us to the key to their

4    case,   and their whole defense now rests on this

5    one premise.     They want you now to reopen the evidence

6    and take judicial notice of two Web sites which they

7    say now,   two months after trial,    are going to prove

a    their defense.     And I want to talk at some length

9    about what's wrong with that effort to rely on these

10   Web sites.

11                    First of all,   I don't think it's an

12   appropriate use of judicial notice to ask a Court to

13   judicially notice a fact that is essential to

14   establish an essential element of a theory of recovery

15   or defense after trial.     What they are saying is we

16   can come in for the first time after trial and,

17   essentially,   establish the element of our defense as a

18   matter of law.     Rule 270 says that you cannot take

19   additional evidence on a controversial matter after

20   the jury has returned a verdict.      And that's the

21   essence of what they are asking you to do here.          And

22   it fits with the judicial notice rule because,         even

23   when judicial notice is proper,      it's proper only if

24   the fact that is being requested for      judicial notice

25   is not within reasonable dispute.       They have to




                                                              000364
                                                                        35




     conclusively establish that the fact exists that they

2    are asking you to take judicial notice of.          And these

3    Web site excerpts simply won't do it.

4                    If you turn to the actual documents that

5    they have attached,     I want to point out a few problems

6    with these Web site excerpts.       The Web site

7    excerpts don't say anything about whether Four J's is

a    certified.   That's the key fact,       is whether Four J's

9    was in fact an RCS program in accordance with the

10   Social Security Act at the time of this incident.

11   Nothing in these two excerpts say that.          In fact,

12   there is a detailed certification procedure

13                   Robert,   if you will give the Court a

14   copy of this.

15                   (Referenced document      tendered to     the

16                   Court   and counsel.)

17                   MR.   POST:   -- that an institution has to

18   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

21   is Section 9.151 of the Administrative Code.            You will

22   see Paragraph 3 says this statute controls the process

23   for certifying an RCS program.       Likewise,    Tab B

24   says this subchapter applies to all RCS programs.

25                   I think this is exactly the statutes




                                                                 000365
                                                                        36



     that they are relying on.

2                    THE    COURT:     Let me ask,    this tab --

3    these are administrative codes?

4                    MR.    POST:     Correct,   Your Honor.

5                    THE    COURT:     You were referring to a

6    statute.

7                    MR.    POST:    Well,     I'm loosely referring

8    to the Administrative Code as a statute.             It is

9    technically regulatory,         but it is the applicable

10   regulatory law here.

11                   THE    COURT:     All right.     Thank you.

12                   MR.    POST:     Tab C,   Your Honor,   in

13   Paragraph (a)   -- this is the language upon which

14   Mr.   Holman relies.     And I agree with him --

15   establishes that an HCS program is the Medicaid

16   waiver program that is referenced in Section 1915(c)

17   of the social Security Act.           We don't quarrel with

18   that conclusion,      but they have to establish that they

19   are a certified program.

20                   Turn then to Tab D.           Section 9.171 sets

21   forth the certification and review procedures.

22   Paragraph   (a) makes clear a provider has to be in

23   continuous compliance with the program certification

24   principles.

25                   Paragraph       (c)   points out that




                                                                    000366
                                                                       37




     DADS conducts on-site certification reviews annually.

2    And Paragraph (d)    provides that a certification lasts

3    for one year only,      and it has to be renewed each year.

4    And so the fact that at one point in time this

5    institution was a certified HCS program does not mean

6    that it is "world without end,      amen."

7                    Turn then to Tab E,    which discusses the

8    process for certification.       Paragraph (a)     assumes the

9    best case.    If DADS does a certification review and

10   finds compliance with all certification principles,

11   the program is certified.       But that's not the only

12   provision.    This is an entire spectrum of what the

13   regulation calls sanctions that deals with the extent

14   of noncompliance.       I want to point you to just a

15   couple of potential consequences.

16                   They have the burden to show you

17   conclusively that they were certified;       so,    I'm not

18   going to try and go through this exhaustively.           But

19   look,   if you would,   at the second page of this

20   provision at Paragraph (d),      left-hand column,     one-half

21   of the way down,    "If DADS determines that a program

22   provider is out of compliance with between 10 and 20

23   percent of the certification principles at the end of

24   the review exit conference          DADS does not certify

25   the program."    That throws the program into a




                                                               000367
                                                                       38




     follow-up review process.       At the end of which -- and

2    you can see this in Paragraph      (2)   -- "Based on the

3    results of the follow-up review," Subparagraph (B),          if

4    corrective action has not been satisfactorily taken

5    DADS denies certification of the program and

6    implements other sanctions.

7                     Without burdening the Court with a lot

8    of administrative parlance,      I will tell you that if

9    you go through the rest of this provision you will see

10   heightening degrees of sanctions that,        likewise,   lead

11   to denials of certification.       So it's not the case

12   that simply because one assumes that this program was

13   once an HCS program it is automatically and forever an

14   HCS program.

15                    So what do we have then on these

16   Web sites?     Again,   the Web sites don't say anything

17   about whether HCS is in fact -- pardon me -- about

18   whether Four J's is in fact a certified HCS program,

19   particularly not on this date.       They don't say

20   anything about whether certification was present at

21   the time.    And I want to talk a little about the

22   details of what you see on the face here.

23                    These Web site excerpts specifically

24   say,   we're providing this as a service to provide a

25   list of providers.       Look at -- at the bottom of the




                                                               000368
                                                                        39



     first page at the caution.

2                     The caution says:       This is simply a tool

3    we provide you to help you make a selection.            This is

4    not a report of the agency's official business.            This

5    is a public service to provide a list of potential

6    providers.    And,   importantly,   look at the

7    last sentence of that caution.          This site may

8    include some self-declared and unverified information.

9                     The test the Supreme Court has laid out

10   for   judicial notice is that the fact you are asked to

11   take judicial notice of must be,        quote,   verifiably

12   certain.     That's what the Supreme Court said in the

13   Eagle Trucking case.       This Web site says, we are

14   telling you some of the information on this list is

15   not verifiable.      On its very face,     it's not

16   appropriate for      judicial notice.

17                   When you look at the second attachment

18   that they have provided,      you see a compliance history.

19   It is littered with noncompliance.          We don't know what

20   action was taken by DADS at the relevant time.            We

21   don't know what corrective steps were taken.            We don't

22   know whether they were certified at the time.

23                   Now,   perhaps a fact finder could draw an

24   inference had this evidence been properly introduced

25   at trial that they were certified; but it's certainly




                                                                000369
                                                                     40



     not conclusive evidence that no reasonable mind could

2    dispute.    And had they tried to put it on at trial, we

3    would have cross-examined them,        not only about what is

4    on this document,      but on the nature of the

5    investigations that took place,        the review process

6    that took place,      and whether there was in fact

7    a certification.

8                    I want you to note in this respect the

9    dog that's not barking.         They didn't put Ms. Uduma on

10   to testify that they were certified as an HCS

11   program.    They haven't given you an official

12   certificate that says on this date they were

13   certified as an HCS program.        Mr. Holman says,   if I

14   hear him correctly,      they don't have it.

15                   This is categorically not

16   appropriate

17                  MR.    HOLMAN:     I don't mean to interrupt,

18   but -- --

19                   THE    COURT:   You will get a chance to

20   respond.

21                  MR.    HOLMAN:     -- I never said that I

22   didn't have it.

23                   THE   COURT:    You will get a chance to

24   respond.

25                  MR.    POST:     They have to prove this fact




                                                                000370
                                                                  41



     conclusively.     This evidence doesn't prove this fact

2    conclusively.     And because they can't establish it,

3    they have to live with the consequences.     They have

4    not established their right to invoke Chapter 74,

5    which means all the other questions related to

6    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

10   raised in our response that this was a    judicial

11   admission made by defense counsel; but,    of course,    I

12   didn't make one argument in my response,    I made three

13   arrangements in my response.     I argued it was a

14   judicial admission,    but I also argued that it was a

15   waiver because counsel made a stipulation to these

16   lawyers and to the Court that he would not assert a

17   defense.    And even if you have a legitimate legal

18   position,   a lawyer representing a client can choose to

19   waive that position; and defense counsel did that.

20   And you cannot overcome that by saying the evidence

21   was conclusive.    He stipulated he would not assert

22   this defense,   and he has to be bound by that

~    stipulation.

24                   And the third argument I made,   he needed

25   your leave to file an amended pleading asserting




                                                           000371
                                                                   42




     this defense on behalf of Ms. Uduma.        You didn't give

2    him that leave because,    when counsel on this side of

3    the table asked for a clarification of your ruling,

4    you looked at him and you said:     Are you asking for

5    relief for Ms. Uduma?     And he said no.     He does not

6    have a ruling granting him leave to amend and assert

7    Chapter 74.     He has waived that consciously.     That

a    means it's immaterial whether it's a judicial

9    admission.

10                    Now, with respect to the judicial

11   admission point, Auld is the only case cited by the

12   parties that deals with the application of Chapter 74;

13   and Auld stands for the proposition that whether you

14   are a health care provider is a fact that can

15   be judicially admitted.     And I believe it was admitted

16   here,    but that question is not even before the Court.

17                    I'm going to touch finally on the duty

18   question with respect to Ms. Uduma.     I don't think

19   we're really in any disagreement about the law.

20   I agree with Mr.    Holman's statement of the

21   basic principles.     I also agree with his statement of

22   the exceptions with regard to the retention of

~    control.

24                    The Osti case is the key case on this

25   point.     It is a Houston 14th Court of Appeals case and




                                                            000372
                                                                      43



     it is in the fire safety context.       And the Houston

2    court held that control remained with the property

3    owner with respect to safe egress from the property

4    and the tenant didn't have the obligation to provide a

5    safe fire escape.     Mr.   Holman tries to distinguish

6    Osti,    but I submit he cannot distinguish it on its

7    facts.     He says that a structural problem in the

8    premises is what Osti is all about.          That's what this

9    case is all about.     The dead-bolted fire exit without

10   the key is in violation of the applicable property

11   ordinances and creates a premises defect.          It is a

12   structural defect.     It is the same as a wall because

13   you couldn't exit.     And,   in addition,   there was

14   evidence at this trial that there should have been

15   overhead sprinklers in this facility.          That is another

16   structural defect that falls squarely within the Osti

17   rule.

18                   The argument that's made today that the

19   control that Ms. Uduma exercised over the premises

20   with respect to the fire escape procedures and the

21   fire safety procedures definitely falls within control

22   of the property.     And it was for the jury to decide

23   whether she exercised that control as the property

24   owner or as an agent of Four J's.

25                   The jury was asked to apportion fault




                                                              000373
                                                                             44



     between Four J's and Ms. Uduma personally.                 The jury

2    made this resolution,             that she had that control and

3    she acted negligently.             And that finding should be

4    upheld.

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

6    questions for you.

7                         MR.   POST:     Of course,    Your Honor.

8                         THE COURT:       All right.     Just so that

9    we're all clear here,             are Plaintiffs persisting in

10   argument that their claim against Ms. Uduma was in her

11   capacity only as the premises owner?

12                        MR.   POST:     As opposed to,    again,

13   capacity as the agent,             Your Honor?

14                        THE COURT:       Or anything else.

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

16   about anything else.

17                        THE COURT:       Negligence.     Negligent

18   activity.      The only theory of recovery against

19   Ms. Uduma is against her in her capacity as the

20   premises owner?

21                        MR.   POST:     I believe that is correct.

22   Let me confer with lead trial counsel,                since I wasn't

23   at the t r i a l .

24                        (Pa use. )

25                        MR.   POST:     I think that's right,       Your




                                                                        000374
                                                                            45



     Honor.

2                        THE COURT:     Okay.     Now,   the -- is it the

3    Johnson case -- whatever Supreme Court case -- that

4    talks about a landlord's duty or lack thereof

5                        MR.   POST:   Yes,    Your Honor.

6                        THE COURT:     -- and sets out the three

7    exceptions?     It talks about the exception for a

a    landlord to retain control of a portion of the lease

9    premises.     I think the standard thought is the common

10   areas in a condominium or in an apartment complex or

11   whatnot.     And your -- as I understand,            your argument

12   is that,    well,    Osti explains that that also addresses

13   control of access and departure,             egress and exit --

14   access and egress -- it's been a long day;

15   excuse me -- of the property.              Is that what you are

16   arguing?

17                       MR.   POST:   That's right.

18                       THE COURT:     Okay.     What -- what evidence

19   do I have that Ms. Uduma maintained control of any

20   structural changes to the property?

21                       MR.   POST:   Well,    Your Honor,    I believe

22   that the testimony was that she,             obviously,    is the

23   property owner; that she made the decisions about the

24   fire safety systems,         the systems that had been

25   installed,    the systems that had not been installed




                                                                     000375
                                                                        46



     with respect to sprinklers; that she was the

2    individual who worked with the fire marshal on the

3    OMNI systems on dealing with inspections; that she was

4    aware of the dead-bolted door.          All of that

5    is evidence from which the jury could draw a

6    conclusion about the capacity in which she was

7    exercising control.

8                    Essentially,     the argument that's made by

9    Defendants is that she wore two hats; and,            therefore,

10   when she undertook this activity,         she was necessarily

11   wearing her Four J's hat.        I don't think the evidence

12   of that proposition is conclusive.           And so it's for

13   the jury to decide.      The jury was asked:       Do you find

14   Four J's liable?      Do you find Uduma liable?         And the

15   jury made that determination and apportioned fault.

16   And I think that the jury had enough evidence before

17   it to conclude that Ms. Uduma was acting in her

18   capacity as property owner when she was dealing with

19   these issues.

20                   THE COURT:      All right.     Do you want to

21   make any responsive reply?

22                   MR.   HOLMAN:    Yes,   Your Honor.

23                   First of all, Mr. Post started his

24   argument by saying that we have some duty to get jury

25   findings about our status as a health care provider.




                                                                 000376
                                                                       47



     There is not a single case in Texas jurisprudence that

2    would ask a health care provider to get jury findings

3    on that.    That's a matter of the Court's

4    interpretation of statute based on the undisputed

5    evidence.

6                     THE    COURT:    Is there any case that says

7    it's a question of law as opposed to a question of

8    fact?

9                     MR.    HOLMAN:    Well,   there is cases that

10   talk about it being a construction of statute as a

11   matter of law.     And we would submit that we have

12   undisputed --

13                    THE    COURT:    What am I construing?

14   I'm just looking at the definition and applying it to

15   the party to determine whether they satisfied the

16   definition,    right?

17                    MR.    HOLMAN:    True.

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

19   fact?

20                    MR.    HOLMAN:    Well,   the question -- it's

21   not a question of fact because the facts are

22   undisputed in this instance.

23                    THE    COURT:    They have got a pretty big

24   brief there as to whether they are a health care

25   institution.




                                                                000377
                                                                        48



                      MR.   HOLMAN:     Let me -- let me say why

2    that doesn't apply.       The only time that they ever

3    raised this argument about,         you know,   whether there is

4    certification,    or whatever,      is after we made the

5    argument post-verdict that Chapter 74 applied.              They

6    said, well,    you didn't show that you were certified.

7    Well,   first of all,    everyone admitted,      every -- every

8    bit of testimony during the trial admitted that we

9    were an HCS program.       There wasn't a single person

10   that got up on the stand or any document they

11   presented that said, wait a minute,           they are not an

12   HCS program because they didn't present certification.

13   Had they have done that,         we would have presented

14   the certification.       And we have the certification to

15   present,    if we need to.       If we needed to,   if that was

16   ever an issue in this case, we certainly would

17   have presented it.

18                    THE   COURT:     But doesn't the

19   definition require there to be -- for the party to

~    be duly certified?

21                    MR.   HOLMAN:     Well,   first of all,   there

22   is not a single case in Texas that has required a

23   hospital,   for example,     to come in and present its

24   license in order to be recognized as a health care

25   provider.     The only time that would come up is if




                                                                  000378
                                                                        49



     somebody said,       you don't have a license.    Then they

2    would say, well,       okay,   I have to present my license.

3    But,    otherwise,   a hospital or an HCS program is

4    operating under the,       under the auspices of the State

5    of Texas unless shown otherwise.

6                     There is no proof in -- anywhere that

7    they were operating in somehow some kind of a renegade

8    fashion as a treater of mentally retarded adults in

9    Texas without a license or without certification.

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

11   that.

12                    THE COURT:       But whose burden is this?    I

13   mean,   you are asking to impose statutory caps on

14   damages.     Isn't it your burden to establish a right to

15   those statutory caps?

16                    MR.    HOLMAN:   And --

17                    THE COURT:       So why does it matter

18   whether there is any evidence that they are a rogue

19   operation?     Isn't it on you all to produce evidence,

20   get a    jury finding that would support a       judgment by me

21   imposing those caps?

22                    MR.    HOLMAN:   No.   There is no -- there

23   is no case that would require us to get a          jury finding

24   on that.     The Court looks at the nature of the

25   institution and decides whether it qualifies as a




                                                               000379
                                                                        50



     health care provider.      And that's those two cases that

2    I   showed you where the Court said,   the nature of

3    this entity is a home and community-based service

4    program for mentally retarded adults; therefore,        it is

5    a health care provider.      It is the Court's

6    determination based on the nature of the beast.         Just

7    like their argument that somehow we needed to get

a    jury findings on whether this was a health care

9    liability claim or not,     there is no case that so

10   holds.    In fact,   the Supreme Court cases all hold that

11   the way you determine that is to look at the nature of

12   the underlying claim.

13                   That Omaha Healthcare case,      the spider

14   bite case,   says you look at the nature of the

15   underlying claim in order to determine whether it's a

16   health care liability claim.      So you look at the

17   evidence that was presented in this case,        and the only

18   evidence that was presented in this case is that they

19   were an HCS program being regulated by DADS.         If they

20   are an HCS program being regulated by DADS,        they are

21   under Chapter 74.      And it's in crystal clear terms in

22   the statute.    Now,   if they are a health care

23   institution,   then they are a health care provider.

24                   Now,   this whole issue is a make-way

25   issue about whether there is certification or not.            If




                                                             000380
                                                                            51



     that were a requirement of the statute,               there would be

2    some case somewhere that said,          well,    you didn't make

3    your certification requirement.           But there is no case.
4                     THE COURT:     Well,    let's be clear,

5    though.    The certification that I am referring to

6    well,   okay.   Looking first at the definitions in

7    74.001 Paragraph      (11),   it lists a whole slew of

B    different entities that can be considered a health

9    care institution.      And one of those is a hospital.

10   And it doesn't say anything about qualifications or

11   certifications or licensure.         It just says hospital.

12                   MR.   HOLMAN:    Right.

13                    THE COURT:     But you are seeking

14   protection under Subparagraph (I )

15                   MR.   HOLMAN:    Right.

16                    THE COURT:        which i      Sf   from what I can

17   tell,   the longest definition under Paragraph (11)

18                   MR.   HOLMAN:    Right.

19                    THE COURT:      "An intermediate care

20   facility for the mentally retarded or a home and

21   community-based services waiver program for persons

22   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

25   care facility can qualify for that definition.                They




                                                                    000381
                                                                         52



     are making it narrow there.           So why shouldn't you

 2   have to establish that you fall within the narrow

 3   confines there?

 4                   MR.   HOLMAN:    You will notice -- and this

5    definition doesn't say anything about license,            about

6    licensure either,     just like the hospital doesn't.

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

8    provider" does.

9                    MR.   HOLMAN:    Right.     And what they say

10   is "chartered by the State of Texas."             The only way

11   you can operate an HCS facility is to be chartered by

12   the State of Texas.      You can't go out and operate an

13   HCS facility without one,       and that's clear in all the

14   regulations.    And in the regulations that we cited to

15   the Court about HCS programs,          the only way that you

16   can be an HCS program is to operate under

17   Section 1915(c) of the Social Security Act.

18                   There is no -- there is no dispute about

19   any of this.    There is no dispute about what

20   constitutes a home and community-based services

21   program for mentally retarded adults.             The regulations

22   require it.    And,   therefore,      we are not required,   just

23   like a hospital is not required,          to prove that we have

24   a license on file because we are a chartered -- we --

25   we were operating under the regulations of the State.




                                                                  000382
                                                                          53




     And if it were a requirement that you will have to

2    come in and show here is a license,         there would be

3    some case that said that,         that that was part of the

4    requirement here,      to show that, well, wait a minute,

5    that you had a license on file.          That's not a

6    requirement.     They are just making that up because

7    it's the only attack -- they haven't said -- you

s    notice,   they haven't said they are not a home and

9    community-based services program for mentally retarded

10   adults under Section 1915(c).          They haven't said

11   that.     If we are,   then we qualify as a health

12   care provider.

13                    Now, Mr. Post made the statement that I

14   indicated we didn't have such a certification.             I

15   never said that.       In fact,    we have the certification.

16   The problem is that I didn't want to get into the

17   position of asking you to reopen the evidence to show

18   the certification because I didn't think that was part

19   of my burden in order to show that we are a home and

20   community-based services program under 1915(c) because

21   that was never an issue.          And it shouldn't be an issue

~    now.

23                    THE COURT:       Let me ask you something.      A

24   doctor is out there treating someone and leaves a

25   sponge in the abdomen,      and it turns out that the




                                                                    000383
                                                                           54



     doctor had lost his license to practice medicine.

2    Whose burden is it at trial to show that the doctor

3    qualifies as a health care provider?

4                     MR.    HOLMAN:     Well,   here's -- here's

5    my belief.     You show -- you show the requirements of

6    the statute.     You say:     I fit this category.        I am

7    here.     I'm hereby abiding by this statute.

a    I qualify as a health care provider.             Then I think

9    the burden is on the opposing party to say:              No,   they

10   don't.    They don't qualify as a health care provider

11   because of XYZ.        Because,    once you qualify as a health

12   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

15   all the definition requirements under the statute; and

16   they come in and say,       well,    you didn't prove that you

17   had a certification -- notice they didn't say you

18   don't have a certification -- so you don't qualify as

19   a health care provider.           They didn't say:    Wait a

20   minute.    There is no license; so,          you don't qualify as

21   a health care a provider.           What they said is:     You

22   didn't prove that you had a license;            so, you don't

23   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
                                                                           55




     because otherwise you couldn't operate such a group

 2   home.

3                       THE COURT:       Do you -- I     just want to

4    make sure I'm clear.         You agree that this is an

5    affirmative defense of the Defendants that the -- the

6    application of the Chapter 74 damage caps?

7                       MR.   HOLMAN:     Yes,   I do.

8                       THE COURT:       Okay.    Let's take it as

9    a different type of case,           a contract case.     The

10   defendant claims the affirmative defense of fraud,

11   vitiating the contract.            Whose obligation is it to

12   establish the seven elements of fraud to support the
13   jury finding to vitiate the contract?               Is it up to

14   the defendant to make sure the question is asked as to

15   the seven elements or is it incumbent on the plaintiff

16   to produce evidence that they didn't show justifiable

17   reliance?

18                      MR.   HOLMAN:     I think the answer to that

19   is,   of course,    they have to present all the evidence

20   of the statute.

21                      THE COURT:       Then why wouldn't the health

22   care provider in this situation have to establish that

23   they are licensed or certified?

24                      MR.   HOLMAN:     Just like I said,     Your

25   Honor,   all of the evidence -- there isn't any dispute




                                                                       000385
                                                                  56



     about what the evidence is.     All the evidence

2    establishes that they are a home and community-based

3    services program for mentally retarded persons under

4    Section 1915(c).     No dispute about that.    If they are

5    operating as an HCS program,    they are operating under

6    the authority of the State of Texas.     That's what the

7    regulations tell us.

8                    We don't have to come in and show our --

9    here's our contract, by the way.     Here's our contract

10   under which we were operating.     Because all -- there

11   is no -- there is not a single bit of evidence that

12   controverts that we were properly operating as an

13   HCS provider.     And so it seems to me ridiculous that

14   we would be required as part of our burden of proof to

15   come in and present the licenses under which we are

16   operating if nobody ever contested that,      if there was

17   never any dispute that we were properly operating as

18   an HCS program.     And there still is no dispute to this

19   day.   So they bring up this argument, but they don't

20   have any -- a lick of evidence that we weren't

21   operating properly as an HCS provider.

22                   THE COURT:   What is your response to

23   their argument that Osti interprets the control

24   exception for landlord liability to issues of access

25   and egress problems?




                                                           000386
                                                                       57



                       MR.   HOLMAN:   Well,   I think it's

2    important to recognize that Ms. Uduma leased the

3    property in 2002.        The access and egress that they are

4    talking about is a dead bolt on a door.           And the dead

5    bolt on the door that we're talking about was in 2008

6    and whether there was a key available to open that

7    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,

9    or that sort of thing.        That's far different because

10   that kind of duty -- the duty of whether you put in

11   sprinklers after 2002 or not,        that was all on Four J's

12   because Four J's was the occupier of the premises.

13   They had possession of the premises.           They had the

14   right to control what happened with how they did

15   their fire safety.        I think that's clear in the

16   evidence.

17                    There was a statement that the fire

18   marshal -- by her taking the fire marshal around was

19   somehow some evidence that she controlled fire safety.

20   And I quote from the record -- and let me just read it

21   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
                                                                          58



     have a four-bed the HCS policy and procedure require

2    that every year the fire marshal will have to come

3    and do inspection to make sure that all the fire

4    systems are working,      that the house is in compliance

5    with the State fire code."

6                    Question:       "Because you owned the house

7    and you had to escort the fire marshal through the

a    premises,   right?"

9                    Answer:     "No.     This was done

10   by Four J's.    But I usually take the fire marshals.

11   It has nothing to do with the group home because the

12   house was leased to the company."

13                   So the only evidence is that Ms. Uduma

14   was doing it on behalf of Four J's,            not as the

15   premises owner.       So their argument that somehow she

16   retained control because she escorted the fire marshal

17   around,   that that imposed liability on her as a

18   premises owner is incorrect.

19                   THE COURT:      All right.       Do you have

20   anything else to add?

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

22                   THE COURT:      Mr. Sparks,      I   forgot to ask

23   you if you had anything to add;            and I apologize for

M    that.

25                   MR.   SPARKS:      I do,    Judge.




                                                                    000388
                                                                        59



                      I   just want to say that Mr. Holman is

 2   incorrect because there was some contest about whether

3    or not Four J's was duly licensed and certified.              In

 4   fact,   Mr. Thweatt was arguing against it when we were

5    challenging the third combined amended answer via our

6    motion to strike.      And,   if I am not mistaken,    you

7    asked him yourself,     Judge,   whether or not they had a

8    license,   certification, registration.         And he said

9    that he thought they did.        And then you asked him if

10   they attached it to their pleadings,       and he said they

11   didn't.    Then he gave you a document that was nine

12   years old,   and then he said that they were going to

13   come back and give you additional documentation and

14   they were going to prove it up by testimony.           That's

15   in the record.

16                    Once we got through with the examination

17   of Ms. Uduma,    we passed Ms. Uduma;    and Mr. Plummer

18   reserved any and all questions that he had about the

19   licensing or anything else related to them being

20   certified until his case in chief.        So,    at the time,

21   when we got through with Ms. Uduma,       there had been

22   nothing in the record that had been elicited from her

23   regarding their corporate status,       certification,

24   registration,    or anything of that nature.

25                    Once Mr. Plummer took her on his case in




                                                                  000389
                                                                           60



     chief -- you can look through the record,           Judge

2    he asked her not one question,        not one,    about

3    registration,   licensing,      certification,    any of the

4    things that you asked him about in reference to them

5    proving up whether or not they came up under the

6    Chapter 74 protections.         So he never asked her and

7    he never put any additional information into -- no

8    additional evidence into the record.

9                    So our position is that they didn't meet

10   their burden of proving and establishing Chapter 74.

11   And,   if they didn't meet their burden,         then Ms. Uduma,

12   who allegedly is the owner of the company,              can't also

13   be a health care provider unless she is a doctor or

14   a nurse.    And her testimony is that she was not.              She

15   was some type of counselor.

16                   What they want to do is say,            well,

17   Mr. Plummer waived her ability to have Chapter 74

18   protections; but that's a conclusion of law,              he

19   couldn't do that.      But our position is,       if,    in fact,

20   she never -- if,     in fact,   Four J's was never

21   established as a health care provider because they

22   hadn't met the requirements of providing a license,

23   registration,   or certification from the State of

24   Texas,   then Ms.   Uduma didn't either.     And for him to

25   stipulate that she wasn't a health care provider and




                                                                     000390
                                                                         61



     they weren't seeking those protections and of which we

2    detrimentally relied on and passed a continuance that

3    you offered us,    they can't come back now and say we're

4    protected under Chapter 74.

5                    So I    submit to you,    Judge,   that,   not

6    only that Mr. Plummer did not meet their burden after

7    telling you that he would -- you asked him the

a    question,   if I'm not mistaken,       two or three times

9    about a license.       It's in the record.     And he said he

10   was going to give it to you.       They never did.         And he

11   never asked Ms. Uduma any questions about whether or

12   not she was certified by the Social Security

13   Administration,    whether or not she was certified by

14   DADS or anybody else.

15                   The issue,    Judge,    in reference to

16   Ms.   Uduma having control over the premises,         I think

17   I think the facts that went to the jury were several.

18   One of them was how she instructed the staff to never

19   take the people out the back door because it was

20   always locked; to take them out of a window; take them

21   out the garage;    try to take them out the front door,

22   even though that back door had been a designated fire

23   exit.   And the only time that door was utilized was

24   when she showed up to open it up for the fire marshal.

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




                                                                  000391
                                                                    62




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

2    premises.

3                   Mr. Plummer,    in his argument to the jury

4    tried to even say this:     There is another exit out the

5    side of the garage that they could have went out of.

6    But that wasn't a designated fire exit.        The back door

7    had been a designated fire exit,     and it had been

B    closed off and sealed off from our clients being able

9    to exit it.

10                   The employee, who ran out of the house

11   when the place was on fire because she was afraid,

12   said that the first thing she did when she thought

13   about trying to extradite these people from the

14   property was that the back door was locked and she

15   didn't have a key.    She panicked and she ran out.

16                  Additionally,    Judge,   I want to share

17   with you the issue on the fire sprinkler system.

18   Ms. Uduma instructed the employees how to go in and do

19   these mock fire drills and put down on the reports

20   that they were getting the people out within a two or

21   three-minute time period,     even though everybody else

22   testified that wasn't correct in terms of how it

23   practically happened.     And we submitted to the jury

24   that they were manipulating,     based on Ms. Uduma's

25   instructions, manipulating the time periods to show




                                                             000392
                                                                          63



     that they could get the people out in less than three

2    minutes so they wouldn't have to put the

3    sprinklers systems in.        And I submit,     Judge,    that by

4    her being directly involved in terms of the fire

5    safety system,    the exit door,        and what the employees

6    should have done to try to get the people out in the

7    event of a fire showed,       and the jury ruled,        that

a    she maintained control over those aspects of the

9    property.     Therefore,   they held her 40 percent liable

10   for the verdict.

11                    And I ask you,     Judge,    to not throw away

12   the hard work that this jury did and the testimony

13   that they heard and the hours of deliberation they did

14   back there,   painstakingly,      and came up with this

15   verdict.    I ask you to submit it -- to sign it and to

16   render it against Four J's and Ms. Uduma.

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

18   Your Honor?

19                    THE COURT:      Yes.

20                    MR.   HOLMAN:    First of all,    there is not

21   a single case in Texas jurisprudence that holds that

22   in order to prove that you are a health care provider

23   you are required to present a license or a

24   certification,    not a single case that does that.             We

25   do not believe that it is our burden to have to prove




                                                                     000393
                                                                        64



     that since the undisputed evidence establishes that we

2    are an RCS program.       And under the law an RCS program

3    qualifies as a health care institution,           under the

4    statute, which is a health care provider.

5                    Now,    if the Court believes or is

6    troubled by whether we are properly certified as an

7    RCS program,   despite all the evidence that we

a    have presented and was presented undisputed in the

9    record that we are an HCS program,        then we would ask

10   the Court to reopen the evidence to allow us to

11   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

14   by the State of Texas.         And the certification

15   continues until terminated,        and it is good as gold.

16   We can present that evidence under a Rule 270 motion

17   to reopen the evidence, which is subject to this

18   Court's discretion.

19                   I am sure that this Court does not want

20   to make a mistake on a matter of law like this when

21   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

25   reopen the record.




                                                                   000394
                                                                        65



                     Rule 270 explicitly says,       II
                                                          .. provided

2    that in a jury case no evidence on a controversial

3    matter shall be received after the verdict of the

4    jury."

5                    Counsel has essentially admitted they

6    did not prove their defense at trial.         And they cannot

7    prove it today.

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

10                   Whether one is a health care provider or

11   not is not a jury issue.

12                   THE COURT:      Can you list for me any

13   other affirmative defenses that are questions of law

14   as opposed to questions of fact?

15                   MR.   HOLMAN:   Well,   whether it's a health

16   care liability claim is a question of law.

17                   THE COURT:      I said "other."      It's clear

18   what your argument is,     that it's an affirmative

19   defense; but it's a question of law,         not a question of

20   fact.    Can you list for me any other affirmative

21   defenses that are questions of law and not questions

22   of fact?

23                  MR.    HOLMAN:   Whether the Tort Claims Act

24   applies.

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




                                                                 000395
                                                                        66



     affirmative defense?

2                     MR.    HOLMAN:    It would be an affirmative

3    defense.     They would have to allege the Tort Claims

4    Act or it would be waived.

5                     THE COURT:       All right.     What else?

6                     MR.    HOLMAN:    I'm thinking

7    of other statutory remedies.          Whether,    whether the --

a    whether damages should be capped under the punitive

9    damages statute.        That wouldn't be an affirmative

10   defense; but it would be as a matter of law whether

11   damages should be capped,         and you would apply the

12   statutory remedy.       And that wouldn't be a       jury issue

13   either.

14                    THE COURT:       All right.     Any further

15   response,   Mr. Sparks?

16                    MR.    SPARKS:    Briefly.

17                    Mr.   Holman indicated that there are

18   cases       Brown versus Villegas was cited,         202 S.W.3d

19   803.    That talks about a doctor who came up under a

20   provision of health care provider.             But there was a

21   LabCorp that was alleging that they also came up under

22   that same protection because they had done business

23   with the doctor,       and the Court ruled that they had to

24   prove it.     They didn't have a license.          They didn't

~    have a certification.        They denied Chapter 74




                                                                    000396
                                                                          67



     protections.

 2                    THE COURT:       What was the name of that

3    case?

4                     MR.   SPARKS:     Brown versus Villegas.

5                     THE COURT:       What is the citation for

6    that?

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

8    of San Antonio.

9                     THE COURT:       It was a San Antonio court

10   of appeals?

11                    MR.   SPARKS:     Yes,   sir.
12                    MR.   POST:     Your Honor,     I will just add

13   to that,   for the Court's benefit.          I think the leading

14   case under Article 4590i that sets out the burden on

15   this issue was Webster versus Johnson,            which was a

16   First District case from 1987.            It's at 737 S.W.2d

17   884.    And it held that applying the Article 4590i caps

18   is an affirmative defense that has to be asserted by

19   the defendant,    and every affirmative defense where

20   there is any factual component has to be proved by the

21   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
                                                                       68



                     Brown versus Villegas,     Page 806 of the

2    opinion,   quote,   "With regard to the assertion that

3    LabCorp meets the definition of a health care provider

4    because it is certified by the State of Texas,

5    LabCorp,   as the movant,     had the burden to present

6    evidence to establish that it is certified by the

7    State of Texas."     Cited:     Cf. City of Van Alstyne,      a

8    Dallas court case that          and they describe the City

9    of Van Alstyne case as saying,       "Noting burden of proof

10   in a motion to dismiss for lack of jurisdiction is on

11   movant."

12                    In Brown versus Villegas,      the Court goes

13   on to state,    "Without that evidence,    we cannot

14   determine whether LabCorp is a health care provider

15   such that the MLIIA is applicable to Brown's claim

16   against LabCorp."

17                   All right.      First of all,   I want to

18   thank everyone.     This has been a very intense and

19   very, very well argued set of issues on this.          I know

20   there is a lot at stake,      and I have taken it

21   very seriously.     And I think all clients have been

22   well served by the arguments of the counsel and the

23   efforts that counsel have made on this matter.          So,

24   first of all,   I want to thank everyone for their

~    efforts on this.




                                                                 000398
                                                                        69



                      I am persuaded to grant the motion for

2    entry of judgment.       I am not persuaded to apply the

3    caps.   I am not persuaded to exclude Ms.           Uduma from

4    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

10   signing the judgment,       would you entertain a motion to

11   reopen the evidence to allow us to present the

12   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

16   the reasons,   the arguments Mr. Post made,          the

17   arguments      I mean,    y'all substantively already

18   argued it anyway,      so ...

19                    Also,   for purposes of the record,        I am

20   denying the request to take judicial notice of those

21   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
                                                                            70



     you with an order on that.

 2                    THE COURT:        All right.     Well,    you have

3    got it on the record.

 4                    MR.    HOLMAN:     Yes.

5                     I would like to,          just for the purposes

6    of the record,    present the Court with the

7    certification from the

8                     THE COURT:        Well,    I -- you can make a

9    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

13   finish with this;       and then we will take up your bill

14   here in a moment.

15                    I am going to -- by the way,             it's my

16   standard practice of not specifying what the court

17   costs are in a    judgment since the clerk's office

18   generates a tax bill for the court costs.                 So I'm

19   going to cross that part out of the judgment.

20                    MR.    THWEATT:     Yes,   Your Honor.

21                    THE COURT:        It's not that -- I am

22   awarding court costs to the Plaintiff.              I   just defer

23   to the clerk's office to calculate the bill.

24                    Now,   you all have double-checked your

25   calculations here and made sure that you have applied




                                                                        000400
                                                                          71



     the right fractions to the jury verdict,                right?

2                      MR.   THWEATT:     Yes,    Your Honor.

3                       THE COURT:      All right.     Before I sign

4    this, Mr.    Sparks,    you have seen the proposed final

5    judgment Mr.      Thweatt just handed to me?

6                      MR.   SPARKS:     I have,    Judge.

7                       THE COURT:      And you agree with entry of

8    it as he requested?

9                      MR.   SPARKS:     I do,    Judge.

10                      THE COURT:      Okay.    Again,    as I said to

11   Mr.    Thweatt,   I'm just crossing out the number for the

12   court costs that are listed in here,             not because I'm

13   excluding that,     but it's simply because I defer to the

14   clerk's office to generate the tax bill.                 I am

15   awarding court costs.        It's just up to them

16   to calculate the amount.

17                     MR.   SPARKS:     Yes,    Your Honor.     Thank

18   you.

19                      THE COURT:      All right.     I have signed

~    the final    judgment.

21                     Mr.   Holman,    you wanted to make a bill

22   real quick?

23                     MR.   HOLMAN:     Actually,    Your Honor,     I

24   will do that later.        I will present the Court with it

25   later.     I have looked at the document;             and although




                                                                      000401
                                                                             72



     it's a valid document,         I want to get it in admissible

2    form to present it before the Court.

3                     THE COURT:       All right.        Is there

4    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

9    evidence that they think I should be considering or at

10   least gotten rulings on every piece of evidence?

11                    Can I hear an oral answer to that,

12   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

16   on the motion to reopen under Rule 270;                 I understand

17   that.

18                    MR. PLUMMER:          Yes,    Judge.

19                    MR.   HOLMAN:     We want to present it in

20   admissible form as to the certification that Four J's

21   was operating under during the time in question.

22                    THE COURT:       Are you going to do that

23   by way of written motion?

24                    MR.   HOLMAN:     Yes,       Your Honor.

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




                                                                      000402
                                                                           73



     schedule another oral hearing on the record for that,

2    do I?

3                    MR.   HOLMAN:     I don't think so.

4                    THE COURT:       All right.

5                    MR.   HOLMAN:     We will be filing,    of

6    course, postjudgment motions; and we will have to have

7    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

10   for new trial or whatever motion,           go ahead and get a

11   hearing date.    Don't wait.       Because basically Quee's

12   instructions are that whenever a motion for new trial

13   comes in,   she brings it to me; and I set it for

14   hearing regardless.      So go ahead and get your hearing

15   because then,   you know,    we have a little

16   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

20   lot of really interesting issues.            I know y'all have a

21   strong interest on how this will be taken up upstairs.

22   I have a strong intellectual interest,           at least,   in

23   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
                                                      74



     a good weekend.

2

3                  (Conclusion of proceedings.)

4


5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                                  000404
                                                               75



     THE STATE OF TEXAS

2    COUNTY   OF   HARRIS

3

4                  I, Kathleen Keese, Official Court
     Reporter in and for the 269th District Court of
5    Harris County, State of Texas, do hereby certify that
     the above and foregoing contains a true and correct
6    transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the
7    parties to be included in this volume of the Reporter's
     Record, in the above-styled and numbered cause, all of
8    which occurred in open court or in chambers and were
     reported by me.
9
                   I further certify that this Reporter's
10   Record of the proceedings truly and correctly reflects
     the exhibits, if any, admitted by the respective
11   parties.

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

14

15
                   WITNESS MY OFFICIAL HAND this the
16   15th day of February, 2012.

17

18
                      Isl Kathleen Keese
19

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

24

25




                                                       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



                                                    2



                                                                                       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.




                                                   3



                                                                                       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."


                                                    4



                                                                                           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.



                                                    5



                                                                                          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


                                                    6



                                                                                        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.




                                                   7



                                                                                       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.




                                                    8



                                                                                         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
                                            706 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



                                                 9



                                                                                     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.


1
   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.



                                                 2

                                                                                       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.



                                                 3


                                                                                        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.


                                                 4

                                                                                      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.


                                                      5


                                                                                               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.



                                                   6


                                                                                          000424
4 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.



                                                 7


                                                                                        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.


                                                  8

                                                                                       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.



                                                9


                                                                                       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.


                                                 10

                                                                                        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.



                                               11


                                                                                      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


                                                 12

                                                                                        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).




                                                13


                                                                                        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."




                                                 14

                                                                                          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:



                                                 15


                                                                                         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.

3 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."

3 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.




                                                 16

                                                                                        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


                                                 17


                                                                                          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
                                       706 Cordell St.
                                     Houston, TX 77009
                                    (713) 862-4913 -Fax
                                    Attorneys for Intervenor



                                                         Isl Russell S. Post
                                                               Russell S. Post




                                              18


                                                                                 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
2 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
                      3 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~~~~
                4 ; )"'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~
                            1
                                               • \                                                                            .
 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 ·
    .
          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




                                                                             2
                                                                                                                                         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




                                                             3




                                                                                              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
                                              '
                                              1
     '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

                                                                                                          9    ~. 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.

        1
         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
                                                            24 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
                                      706 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
                           0

                                                     §            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 ~

    10 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?
                                                   2


                                                                                              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.

                                                  3


                                                                                          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."

                                                 4


                                                                                       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.

                                                   5


                                                                                         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?

                                                  6


                                                                                          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.


                                                 7


                                                                                         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.
                                                   8


                                                                                          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.

3 RR247-48.


                                                 9


                                                                                         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."

3 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.

                                                 10


                                                                                        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.

                                                   11


                                                                                          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 ).



                                                 12


                                                                                         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.

                                                  13


                                                                                          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




                          14


                                                                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
                                           706 Cordell St.
                                         Houston, TX 77009
                                       (713) 862-4913 -Fax
                                      Attorneys for Intervenor



                                                             /s/ Russell S. Post
                                                                   Russell S. Post




                                                15


                                                                                       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




                                             16


                                                                                  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



        1
          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;




        2
          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
                                                            24 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
                                      706 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."

                                                  2


                                                                                          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.

                                                   3


                                                                                           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.

                                                 4


                                                                                        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.

                                                  5


                                                                                          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.

                                                  6


                                                                                          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




                           7


                                                                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
                                          706 Cordell St.
                                        Houston, TX 77009
                                      (713) 862-4913 - Fax
                                     Attorneys for Intervenor



                                                           Isl Russell S. Post
                                                                 Russell S. Post




                                                8


                                                                                     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


 1                            REPORTER'S RECORD
                                   VOLUME I
 2
                     TRIAL COURT CAUSE NO. 2009-40925
 3

 4                                          )
      PATTI J. WAGNER, as                   ) IN THE DISTRICT COURT
 5    Guardian of JENNY ANN                 )
      WAGNER, an Incapacitated              )
 6    Adult                                 )
                                            ) OF HARRIS COUNTY, TEXAS
 7    V.                                    )
                                            )
 8    FOUR J'S COMMUNITY LIVING             )
      CENTER, INC., ANTHONIA                )
 9    UDUMA and GODFREY UDUMA               ) 269TH JUDICIAL DISTRICT

10

11

12                    ------------------------------

13                     PRETRIAL MOTIONS, VOIR DIRE,

14                            STATEMENT OF FACTS

15                    ------------------------------

16

17

18

19         On the 17th day of October, 2011, the following

20   proceedings came on to be heard in the above-entitled

21   and numbered cause before the Honorable Dan Hinde, Judge

22   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
                                                                        2


 1                        A P P E A R A N C E S

 2   FOR THE PLAINTIFF, PATTI J. WAGNER, as Guardian of JENNY
     ANN WAGNER, an Incapacitated Adult:
 3
         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

 8
     FOR THE INTERVENOR:
 9
         MR. SHELTON SPARKS
10       TBA NO. 06507160
         Shelton Sparks & Associates
11       706 Cordell Street
         Houston, Texas 77009
12       Phone: 713.862.4913

13
     FOR THE DEFENDANTS:
14
         MR. JAMES C. PLUMMER
15       TBA NO. 16075700
         Plummer & Kuykendahl
16       4203 Montrose, Suite 270
         Houston, Texas 77006
17       Phone: 713.522.3605

18

19

20

21

22

23

24

25



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000523
                                                             Volume 1
                                                                        3


 1                                I N D E X

 2                                VOLUME I

 3                                                  Page       Vol.

 4   Announcements.........................             4         1
     Pretrial Motions......................            12         1
 5   Voir Dire by the Court................            54         1
     Juror Instructions to the Panel.......            60         1
 6   Voir Dire by the Plaintiff............            67         1
     Voir Dire by the Intervenor...........            88         1
 7   Voir Dire by the Defendant............           115         1
     Jury Seated...........................           227         1
 8   Jury Instructions.....................           231         1
     Plaintiff's Opening Statement.........           242         1
 9   Intervenor's Opening Statement........           254         1
     Defendant's Opening Statement.........           265         1
10
     Plaintiff's Witnesses
11   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

14   Adjournment........................... 352                   1
     Court Reporter's Certification........ 353                   1
15
                       EXHIBITS PREADMITTED
16   Plaintiff's
     1-33, 35-37, 39-40, 43-37, 50-53......            48         1
17
     Intervenor's
18   1, 2, 4-8, 10, 11, 15-24..............            49         1

19   Defendant's
     2-4, 7, 10-12, 15, 16, 18-25, 36, 37,
20   59, 64, 66-68, 70.....................            50         1

21

22

23

24

25



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000524
                                                             Volume 1
                                                                        4


 1                       THE COURT:     All right.      This is Cause

 2   Number 2009-40925, Patti J. Wagner, as Guardian of Jenny

 3   Wagner, an Incapacitated Adult, et al, versus Four J's

 4   Community Living Center, Inc., et al.

 5                       Can I have appearances, please, for the

 6   record?

 7                       MR. THWEATT:      Good morning, Your Honor.

 8   Lee Thweatt and Joe Terry for the plaintiff,

 9   Patti Wagner, and on behalf of her daughter,

10   Jenny Wagner.

11                       THE COURT:     All right.

12                       MR. SPARKS:      Shelton Sparks and

13   Tiffany Harvey for the Intervenor.

14                       THE COURT:     All right.

15                       MR. PLUMMER:      Jim Plummer and

16   Amar Raval for the defendants, Four J's Community --

17   Community Centers, and Anthonia Uduma.

18                       THE COURT:     All right.      Thank you.

19                       MR. PLUMMER:      And our legal assistant,

20   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

25   trial?



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000525
                                                             Volume 1
                                                                            5


 1                       MR. PLUMMER:      Yes, Your --

 2                       THE COURT:      Excuse me.      Intervenors

 3   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

 9   in a moment.    All right?

10                       All right.     First things first.         I

11   think we've already talked about this, the time limits.

12   I've set this for four days.         So each side will get

13   seven hours to present their own witnesses and

14   cross-examine the opposing side's witnesses.

15                       Let's talk here briefly:            Mr. Thweatt,

16   Mr. Sparks, how much time do you need for voir dire?

17                       MR. THWEATT:      Your Honor, my partner,

18   Joe Terry's going to be handling voir dire.

19                       MR. TERRY:     35, 40 minutes, Your Honor,

20   will be fine.

21                       THE COURT:     And is that just for

22   yourself or to be split with Mr. Sparks?

23                       MR. TERRY:     Just for myself, Your

24   Honor.

25                       MR. SPARKS:      Judge, I think no more



          Cause No. 2009-40925, Wagner Vs. Four J's, et al     000526
                                                              Volume 1
                                                                         6


 1   than 20 minutes.

 2                       THE COURT:     How much time do you need,

 3   Mr. Plummer?

 4                       MR. PLUMMER:      Judge, I believe 35, 40

 5   minutes will be fine.

 6                       THE COURT:     All right.      What I'll give

 7   is 50 minutes for plaintiffs and intervenors to split

 8   and 50 minutes, equal time, for you.

 9                       Do y'all want any warnings, a

10   five-minute warning or anything like that?

11                       MR. TERRY:     Sure, Your Honor.        That

12   would be fine.

13                       THE COURT:     Well, do you want a

14   five-minute warning?

15                       MR. TERRY:      Yes, sir.

16                       MR. SPARKS:      Yes, sir.

17                       THE COURT:     Do you want a warning,

18   Mr. Plummer?

19                       MR. PLUMMER:      Yes, Your Honor.       Five

20   minutes will be fine for me.

21                       THE COURT:     Mr. Thweatt, how much time

22   do you need for opening statement?

23                       MR. THWEATT:      I think about 40 minutes

24   would be --

25                       THE COURT:     You need 40 minutes on this



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000527
                                                             Volume 1
                                                                           7


 1   one?

 2                          MR. THWEATT:      I'll cut it down to 30,

 3   Judge.

 4                          THE COURT:     Mr. Sparks?

 5                          MR. SPARKS:      20 minutes.

 6                          THE COURT:     All right.      I'll give

 7   plaintiffs and intervenors 45 minutes total.

 8                          Do y'all, again, want a warning of any

 9   kind?

10                          MR. SPARKS:      Yes.

11                          MR. THWEATT:      Yes.

12                          THE COURT:      45 minutes sufficient,

13   Mr. Plummer?

14                          MR. PLUMMER:      More than sufficient,

15   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

21   time limits for closing argument when we get there.

22                          Just to let y'all know what to expect:

23   With our new jury facility right next door, we expect --

24   I expect to get the jury here by about 9:30, maybe, at

25   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
                                                                           8


 1   the next 40 minutes because I don't make them wait.

 2                       As soon as we get the jury cards, they

 3   will be distributed to you.        If we're still in the

 4   middle of arguing motions in limine and whatnot, they'll

 5   be handed to you.     If we're done, obviously, you'll have

 6   more time to do that.      But we'll get those cards to you

 7   as soon as we get them.

 8                       Once they arrive in the hall, they need

 9   some time to use the restroom and whatnot.              We'll break

10   what we're doing here, and I will go out and greet them

11   in the hallway informally to welcome them to the court,

12   thank them for their service, and encourage them to

13   speak up during voir dire.        That will give y'all a few

14   extra minutes to go over their cards.

15                       Then we'll bring them in.           Counsel will

16   conduct their voir dire examination from that podium

17   that's standing right there.         The court reporter will be

18   over kind of behind where Mr. Plummer is, along the rail

19   to the gallery.     So I can't have y'all walking back and

20   forth back there, especially since my court reporter,

21   unfortunately, is injured.        I don't want anyone tripping

22   over her injured foot.

23                       So you'll conduct your voir dire from

24   that podium.   We'll do the entire panel examination.

25   Don't worry about motions to strike for cause during the



          Cause No. 2009-40925, Wagner Vs. Four J's, et al    000529
                                                             Volume 1
                                                                            9


 1   panel examinations.      Just do your panel examination and

 2   then we'll take a break for the panel while we'll call

 3   back any jurors who you need to bring back for an

 4   individual interview.

 5                       What will happen is when Mr. Plummer's

 6   done with his panel examination, I'll call the lawyers

 7   up here, then I'll ask you to give me just the numbers

 8   of any jurors that you need to call back for an

 9   individual interview.      So be thinking about that.              Don't

10   wait until I call you up to start thinking about who

11   y'all need to talk to again.

12                       Unless I ask for an explanation, you

13   don't need to give me an explanation.            Just give me the

14   numbers.   Then we'll do the break while we're bringing

15   them back in one by one.

16                       Again, don't worry about motions to

17   strike for cause during the individual interviews.

18   Let's just get all those individual interviews taken

19   care of.   Then after that, we'll worry about motions to

20   strike for cause.

21                       I'll ask you again, each -- each party,

22   give me the numbers of any jurors that you're moving to

23   strike for cause.     Again, unless I ask you for an

24   explanation, don't start giving me your argument

25   because, basically, I want to see if there are any



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000530
                                                             Volume 1
                                                                           10


 1   double or triple strikes of people who, you know, looks

 2   like everybody agrees on.

 3                          Then I'll ask you, okay, do you agree

 4   on any of plaintiff's, do you agree on any defendants',

 5   and then we'll argue the ones that are in dispute.

 6                          After that, you'll get about 10 to 15

 7   minutes to do your peremptories, and I will bring the

 8   jury back in and impanel the jury.

 9                          I've brought -- I've ordered a panel of

10   48 jurors; so it will start from Juror Number 1 to my

11   extreme right on the front row of the gallery, all the

12   way to Juror Number 16 on the front row to my extreme

13   left.     We start with Juror Number 17 on the second row

14   and go all the way to Juror Number 32, and then Juror

15   Number 33 on the far right, all the way to Juror Number

16   48.     So that's how we'll handle that.

17                          One thing we do here, you're going to

18   find out, if you haven't already figured out, I value

19   the jury's time very highly and I try to make sure that

20   we use their time as efficiently as possible.                So we're

21   going to be working very hard to make sure that as much

22   of the time during the day is spent with them in the

23   box, presenting witnesses, evidence, and argument to

24   them, as possible.

25                          Sometimes, obviously, we have to



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000531
                                                                Volume 1
                                                                          11


 1   have -- we have to have conferences outside the presence

 2   of the jury.    We have some unique technology here that

 3   allows us to do that without having to shuffle the jury

 4   back and forth to the jury room or without requiring us

 5   to whisper up here under our breaths and it also allows

 6   us to have the conferences on the record.               It's a white

 7   noise system.

 8                       What will happen is I will turn on the

 9   white noise system, y'all will come up here, you'll

10   speak directly and in a regular voice towards this

11   microphone here.     I'll speak towards my microphone.              The

12   court reporter will be able to record it.

13                       Meanwhile, the speakers over the jury

14   box will be broadcasting white noise; so all the jurors

15   can hear is white noise.       I've interviewed every jury

16   after every trial I've had in this court to make sure it

17   works; and every time they told me they could not

18   understand what was being said between the lawyers and

19   the judge during these conferences.           It's an amazing

20   timesaver, and it allows us to get through that stuff

21   pretty quickly.    This is what it sounds like,

22   incidentally.

23                       All right.     I didn't look too closely

24   at your charges.     If y'all are all in agreement on the

25   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
                                                                          12


 1   haven't agreed on the charge, I'll need you to each

 2   e-mail your latest version of the charge to Mr. Garibay

 3   in Word format so that I can put the charge together as

 4   quickly as possible.      His e-mail is on the website, the

 5   Justex website; so it should be pretty easy.             Make sure

 6   you cc the opposing counsel and whatnot.

 7                       I know we've got some motions to take

 8   care of.   Before we do that, have y'all discussed your

 9   motions in limine, your exhibits, your deposition

10   objections to winnow down what's truly in dispute and

11   what y'all can agree on?

12                       MR. THWEATT:      Yes.

13                           PRETRIAL MOTIONS

14                       THE COURT:     All right.      The first one

15   we're going to take up is Plaintiff and Intervenor's

16   Joint Motion to Strike Defendant's Combined Third

17   Amended Answer and Defendant's First Amended Answer,

18   Plea in Intervention.

19                       And I gather that what I was handed

20   just before we started, entitled Defendant's Motion for

21   Leave to File Third Amended Answer and First Amended

22   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
                                                                           13


 1   with the Motion to Strike.

 2                       Mr. Thweatt, do you want to present

 3   this or, Mr. Sparks, are you going to present this?

 4                       MR. THWEATT:      I'll be happy to present

 5   it, Your Honor.

 6                       As the Court has seen from our motion

 7   submitted, we object to the untimely filing of the

 8   defendant's amended answers submitted on October the

 9   5th, 2011.   The Court's pleadings deadline in this case

10   expired on December the 3rd, 2010; and the discovery

11   cutoff expired back in February of 2011.

12                       Under Rule 63, there has to be -- well,

13   Rule 63 very plainly permits late amendments, provided

14   leave is sought.     I would note that there was no leave

15   sought until this morning, I believe.

16                       And I believe in our motion we've

17   stated the surprise that these late amendments present

18   to us.

19                       Essentially, Judge, we're having a

20   dispute about whether this is a Chapter 74 medical

21   malpractice case or not.       We don't believe that the

22   facts of this case to this point in any of the pleadings

23   or the depositions that have been exchanged indicate

24   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
                                                                        14


 1   involve the delivery of medicine.          There's no doctor or

 2   nurse or the administration of any kind of healthcare at

 3   issue in this case.

 4                       We were surprised to see that

 5   Chapter 74 was being invoked.         Mr. Plummer has noted in

 6   his response that I did file on behalf of plaintiff

 7   expert reports that were submitted, basically to guard

 8   against the possibility that this Court might consider

 9   it as a Chapter 74 claim.

10                       Just the fact that this case involves a

11   Chapter 74 healthcare provider does not, by necessity,

12   mean that it's a Chapter 74 claim.           And the remedy for

13   not filing expert reports in a case that can be

14   considered a healthcare liability claim -- we don't

15   believe that it is; but if the Court later determined

16   that it was, would be dismissal with prejudice.

17                       So we have a catch 22 decision to make

18   there.   We made it.     Nonetheless, just because we have

19   made it -- we certainly did not submit expert reports

20   that were filed by any physician, any nurse, nothing

21   like that.   What we submitted were expert reports from a

22   gentleman who works at the Center for Mental Retardation

23   here in Houston and the fire -- the former fire chief

24   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
                                                                           15


 1   defenses should be applicable.            They're way late on

 2   this, nobody's conducted discovery on this, and the

 3   reason for that is because the discovery deadline and

 4   all the deadlines that you enforced in your Motion for

 5   Summary Judgment -- or their Motion for Summary

 6   Judgment, which you denied, is untimely.

 7                          I well remember the first time I was

 8   before you, Your Honor, in this case.               You emphasized to

 9   me the importance of deadlines in this case; and we've

10   tried to comply with those since then, especially so.

11                          Beyond that, everything is stated in

12   our motion; and we don't think that these answers ought

13   to be -- or these defenses should be before this Court.

14                          THE COURT:     How does asserting the

15   damage caps in Chapter 74, which is basically, I

16   think -- isn't that the effect that allowing the answers

17   to have -- that it's the only consequence of allowing

18   the answers, is it raises this prospect of the damage

19   caps?     Is there anything else that Chapter 74 would do

20   to change this case?

21                          MR. THWEATT:      That's certainly one of

22   them.

23                          I'm not exactly clear from their

24   answer.     They say that the plaintiff and intervenor

25   failed to comply with the other provisions of



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000536
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 1   Chapter 74.      I'm not exactly sure what they mean by

 2   that.     They haven't defined exactly what they mean in

 3   their answer or -- and, for that reason, I don't know

 4   what the other consequences could be.

 5                          I do know that there is a section --

 6   and we've cited this in our motion -- that a Chapter 74

 7   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

10   because we don't believe that this is a Chapter 74

11   healthcare liability claim; and the only way we could

12   overcome that prejudice now, Judge, is to ask for more

13   time.     We're not going to do that.           I don't expect the

14   Court would grant that anyway at this late point.

15   That's certainly one way that we could be prejudiced and

16   they would be prejudiced, potentially, if the Court

17   determines, or a later Court determines on appeal,

18   determines that expert testimony's required to establish

19   causation in this case.

20                          Maybe it won't be, and maybe it will

21   be.     But that's an open question that could have

22   potential implications after this trial concludes; so it

23   is a big issue for us.          It's something that, on the

24   current state of the evidence in the pleadings, could

25   not have been anticipated; and that's certainly one of



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000537
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                                                                        17


 1   the reasons why we objected to it.

 2                       And I think I've highlighted that as a

 3   potential reason in the draft order --

 4                       THE COURT:     Okay.     Well, I'm trying to

 5   get down to the brass tacks of what the consequences of

 6   allowing an amendment to assert Chapter 74 would be

 7   since, obviously, they've long since waived any right to

 8   move to dismiss for an inadequate expert report.

 9                       So I mean, you know, you've argued that

10   it reshapes the litigation.        You've told me that it may

11   require you to present a -- a specific kind of expert on

12   causation, and there's the damage caps.

13                       Is there anything else of consequence

14   to the effect of Chapter 74 on this case if they're

15   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

19   property owner; and she owns -- she was the 100 percent

20   owner of the property that burned and we also have her

21   company that she owns 100 percent, Four J's Community

22   Living Center, Inc.

23                       Let's assume for the sake of argument,

24   Your Honor, that the jury comes back and they say it's

25   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
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                                                                              18


 1   Four J's than it is against Ms. Uduma.

 2                       In that case, in addition to the caps,

 3   we're going to have to reshape the way we're going to

 4   present our evidence to make sure that more liability is

 5   placed on Ms. Uduma so that she is jointly and severally

 6   liable for any verdict that this jury renders.

 7                       And that's -- that's a different animal

 8   than coming in here and just trying a premises case,

 9   just trying a Chapter 74 case against the defendant,

10   Four J's Community Living Center, Incorporated.

11                       And we'll do our best to do that,

12   Judge; but, I mean, they submitted this October the 5th.

13   And, you know, 12 days before trial it is not -- we

14   couldn't have conducted any discovery, as it was.                  But

15   that -- Mr. Sparks and I have discussed it is going to

16   require a reshifting of emphasis during the evidentiary

17   portion of this trial to establish the liability, not

18   just damages, to make sure that most of the liability is

19   established on Ms. Uduma so that she's jointly and

20   severally liable because, if not, it may be a pure

21   victory.

22                       We might have -- let's say the jury

23   comes back and says 90 percent on Four J's.             Well, then

24   we're left with a damage award that's capped and another

25   defendant who's only ten percent on the hook for -- if



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000539
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                                                                             19


 1   at all because of joint and several liability.

 2                          So that's a pretty significant

 3   strategic shift, in our view.            It does have consequences

 4   for both the plaintiff and the intervenor.                 I'm hoping

 5   I've made that argument on behalf of both of us.

 6                          If there's anything else that needs to

 7   be added...

 8                          MR. SPARKS:      Yes.

 9                          THE COURT:     Anything to add?

10                          MR. SPARKS:      No, sir.

11                          THE COURT:     All right.       Mr. Plummer,

12   your response?

13                          MR. PLUMMER:      Judge, first of all, you

14   know, I don't dispute the late filing.               I mean, I -- we

15   acknowledge that.

16                          When we took over, we looked at the

17   file.    And years ago what we -- they said, I would have

18   agreed with, that this is not a Chapter 74 case.                 But it

19   is now -- under the current Court's interpretation of

20   Chapter 74, this is clearly a Chapter 74 case.

21                          I gave the Court -- and I'll give the

22   Court another copy.         I've given counsel a copy of a

23   July, 2011, opinion by the Texas Supreme Court involving

24   a nursing home that was sued because of a spider bite.

25                          And the Court determined -- and



             Cause No. 2009-40925, Wagner Vs. Four J's, et al    000540
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                                                                          20


 1   particularly the language in defining a health liability

 2   claim -- that not just medical negligence applies, but

 3   safety issues in the statute apply.           Okay?     And that

 4   included that nursing home that does similar work as us.

 5                       Now, Mr. Thweatt has also commented --

 6   and I want to direct this quickly -- about the dismissal

 7   with prejudice result.

 8                       The Court's correct that they have

 9   timely filed expert reports.         There's no requirement, as

10   I understand it, for any doctors' opinions or any

11   healthcare providers' opinions.          The special issues that

12   they've crafted are appropriate, as far as I can tell on

13   these facts in this case.        Okay?    So there would not be

14   that result.

15                       There is -- the only result I -- of

16   Chapter 74 would be the damage cap, number one, and

17   number two, there's the -- the -- we've raised

18   limitations against the intervenor and there's a --

19   there's a portion of the limitations statute in the

20   Medical Liability Act that would apply, but we don't

21   think we need that on the facts of this case.              I think

22   we're entitled to limitations -- to assert our

23   limitations to the defense and succeed on that,

24   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
                                                                        21


 1   Judge.

 2                       And I want to give the Court two other

 3   cases; Marks versus St. Luke's Hospital, which is 2008,

 4   and Diversicare, which is 2005.          I've highlighted all

 5   these; and I think counsel has highlighted copies, also.

 6                       One's a nursing home; one's a bad bed

 7   in a hospital.    But they're all premises cases, just

 8   like this.

 9                       THE COURT:     And what is your argument

10   that Four J's falls within the statutory definition of a

11   healthcare provider?

12                       MR. PLUMMER:      Just like -- first of

13   all, they're governed by the Health and Safety Code and

14   the Texas Administrative Code, Section 40 -- I mean,

15   Title 40, Section 9.151.       That's number one.         And it

16   sets out the criteria for their -- the governance of

17   that operation of a group home.          That's number one.

18                       Number two, they do the same sort of

19   thing as a nursing home.       There are people there who

20   don't necessarily have health problems but are attended

21   to healthwise, we deliver medications, we -- our -- our

22   customers and our clients are daily medicated, when

23   appropriate and as instructed by a physician.              They get

24   psychotherapy.    They get physical therapy.            They get

25   vocational training.      They get the same sorts of things



          Cause No. 2009-40925, Wagner Vs. Four J's, et al    000542
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                                                                           22


 1   as people in a nursing home would, the difference being

 2   that our clientele are mentally retarded and have

 3   developmental disabilities, physical disabilities, and

 4   in a nursing home folks are -- tend to be older and on

 5   the decline.      Okay?     But other than that, it's the exact

 6   same circumstance as a nursing home.

 7                          And the -- and the Court's opinion in

 8   the initial case I've given the Court is directly on

 9   point.

10                          And then on the surprise issue, I

11   believe the way the expert reports were prepared -- and

12   we've attached the first two pages of those experts'

13   report.     Each one says I have been informed by

14   Mr. Thweatt that this is the Chapter 74 claim and,

15   therefore, I'm doing my expert report consistent with

16   the requirements of Chapter 74.             So there's no surprise,

17   none whatsoever.        The proof is the same, that they have

18   to make in this case, as they would in a Chapter 74

19   case.     And the issues, the jury issues, the issues that

20   go to the jury are exactly the same.

21                          So I -- I am not sure -- perhaps had we

22   gone to trial without raising this, I would have waived

23   my entitlement to invoke Chapter 74; but the legislature

24   has been clear and the Supreme Court has been clear that

25   it applies in this context.



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000543
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 1                          Some people might call it expansive,

 2   but it doesn't matter because that's what the Court

 3   says.    And we would ask the Court leave to file our

 4   amended answers and assert the appropriate Chapter 74

 5   against principally the damage cap.

 6                          THE COURT:     Do you have a license,

 7   certification, registration, or charter from the State

 8   of Texas?

 9                          MR. PLUMMER:      Yes, Your Honor.

10                          THE COURT:     Where is that?       Is that

11   attached to your Motion for Leave?

12                          MR. PLUMMER:      It is not attached to my

13   Motion for Leave.        What do we have -- in may be one of

14   our exhibits.

15                          Our operation is approved by DADS.             And

16   what's DADS again?        The Department of Aging and

17   Disabilities.

18                          We're also governed by -- we're a part

19   of the Home and Community-Based Services Program out of

20   the Department of Health.

21                          THE COURT:     I asked do you have a

22   license, certification, registration, or charter by the

23   State of Texas.

24                          MR. PLUMMER:      We have a charter as a

25   corporation, Judge.         We have a license to operate our



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000544
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                                                                        24


 1   group home.

 2                       I did not attach one to the -- to

 3   the -- to the response, but I believe we may have

 4   something that shares that with the Court.

 5                       Judge, let me give you what we have as

 6   Exhibit 1 and Exhibit 3.       These aren't the

 7   certifications that license us to operate; but they are

 8   certifications that identify our capacity, particularly

 9   Exhibit 3 -- excuse me -- I think particularly

10   Exhibit 1.    But we can certainly get that for the Court

11   this morning; and we certainly have testimony of that to

12   bring, Your Honor.

13                       I also have, Judge, a copy of Chapter 9

14   of the -- of the Texas Administrative Code that also

15   governs us.

16                       THE COURT:     Mr. Thweatt, if bites from

17   bugs in one's bed are considered healthcare liability

18   claims, why isn't this -- why doesn't [sic] the facts

19   alleged in this case come under the Supreme Court's

20   understanding of the healthcare liability claim?

21                       Mr. Thweatt:      Because of this language

22   here, Your Honor, which the Supreme Court has -- has not

23   rejected.

24                       I've cited this in our motion, the case

25   of Valley Baptist Medical Center versus Stradley, a case



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000545
                                                             Volume 1
                                                                        25


 1   out of the Corpus Christi Court of Appeals, similar

 2   cases also out of the Austin Court of Appeals and the

 3   Houston First Court of Appeals.

 4                       It says as follows:         (Reading) We hold

 5   that a safety claim can be categorized as a healthcare

 6   liability claim only when it is against a healthcare

 7   provider or physician or a claimed departure from

 8   accepted standards of safety directly related to

 9   healthcare.   Holding otherwise and finding all safety

10   claims against healthcare providers or physicians to be

11   healthcare liability claims, regardless of whether they

12   directly relate to healthcare, would be an arbitrary and

13   legislatively unauthorized expansion of the healthcare

14   liability statute.

15                       I think the other distinguishing

16   factor, Your Honor, in those cases that Mr. Plummer has

17   handed to you, there were not two defendants.             There was

18   not a separate premises owner.         In this case there is.

19                       We have the owner of the company,

20   Ms. Anthonia Uduma, who owned this facility, personally

21   and 100 percent herself, and then we have this company.

22   And that's a very important factor that's different in

23   these cases that Mr. Plummer has cited.

24                       THE COURT:     Mr. Plummer?

25                       MR. PLUMMER:      Judge, with regard to



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000546
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                                                                           26


 1   Ms. Uduma, I think he's correct.             Chapter 74 wouldn't

 2   apply.     She's just a premises owner.           She owns the

 3   building.

 4                          With regard to the case cited by

 5   counsel, the three cases that we've given the Court

 6   prevail over that case.          That was a court of appeals

 7   opinion.

 8                          The spider bite case was clearly a

 9   premises type case.

10                          THE COURT:     No.    The Supreme Court held

11   it's a healthcare liability case.

12                          MR. PLUMMER:      I understand, but the

13   issue was maintaining the safety of the premises.

14                          One of the allegations they said is you

15   didn't keep the premise free from insects, you didn't

16   use pesticides on a regular basis to protect against

17   that.    That was the kind of issue that they raised.

18                          And the Court said, sorry, safety, that

19   portion of the definition of a health liability claim

20   involving safety, an undefined term in the statute, is

21   broad.

22                          And where you have a claim against a

23   facility that provides healthcare, in its context it

24   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
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                                                                               27


 1   the same thing, and that was decided by the Court in

 2   2005.

 3                          And then, of course, the other one that

 4   I mentioned and cited similarly involved claims that

 5   traditionally we would not consider health liability

 6   claims but the Court has read the statute broadly to

 7   encompass them.       It doesn't encompass Ms. Uduma.            It

 8   does encompass Four J's Community Center.

 9                          THE COURT:     All right.      Y'all give me

10   five minutes.       I'll be right back.

11                          (Break taken from 9:04 a.m. to

12   9:10 a.m.)

13                          THE COURT:     Mr. Thweatt, Mr. Sparks, do

14   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

20   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

25   sure -- I wasn't trying to game y'all or anything.                    I



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000548
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 1   believed you the first time, but I didn't want you to

 2   think that how I was going to rule is going to depend on

 3   whether he said you wanted a continuance or not.              And

 4   that's why I was asking again, just to make sure.

 5                       MR. SPARKS:      Judge, could I be

 6   correct -- you said the Motion to Strike was --

 7                       THE COURT:      Denied.

 8                       MR. SPARKS:      -- denied?

 9                       THE COURT:     Motion for Leave to amend

10   is granted.

11                       MR. SPARKS:      Then we do want a

12   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

16   I've got trial time.

17                       In light of the -- Mr. Sparks' request

18   for a continuance, which I am going to grant,

19   Mr. Thweatt do you have anything to say on how much time

20   you need for a continuance?

21                       MR. THWEATT:      Judge, may I confer with

22   Mr. Sparks?

23                       THE COURT:      Yes.

24                       (Off the record conference.)

25                       MR. THWEATT:      Your Honor, one question



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000549
                                                             Volume 1
                                                                        29


 1   of clarification:     Is your ruling applicable to both

 2   defendants or just to Four J's Community Living Center

 3   in light of Mr. Plummer's comments to the Court?

 4                       THE COURT:     Mr. Plummer, are you --

 5                       MR. PLUMMER:      Judge, primarily to

 6   Four J's.    It doesn't apply to Ms. Uduma.

 7                       THE COURT:     So you're not asserting

 8   Chapter 74 as to Ms. Uduma?

 9                       MR. PLUMMER:      Well, as the -- as the

10   owner of the property.

11                       THE COURT:     Well, what does that mean?

12   She's a defendant.     Is -- are you going to claim any --

13   any defenses, any rights, any applicability of

14   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,

18   we won't -- we won't need the continuance, Judge.

19                       THE COURT:     All right.      Okay.    So let's

20   move on.    We've got to move quickly here.

21                       First of all, I've got plaintiff's

22   Motion in Limine, defendant's Motion in Limine.              I

23   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.



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000550
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 1   We'll adopt those from the plaintiff.

 2                          THE COURT:     All right.       Looking first

 3   at the Motions in Limine of the plaintiff, which of

 4   these do you contest, Mr. Plummer?

 5                          MR. PLUMMER:      Mr. Raval will respond,

 6   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

10   Motions 1 through 22 are granted as agreed.

11                          23, Mr. Thweatt?        This is your motion,

12   isn't it?

13                          MR. THWEATT:      It is, Your Honor.           I

14   think the facts in this case may show -- well, they will

15   show, if the Court permits it, that Ms. Wagner entered

16   into a foster care agreement with Four J's Community

17   Living Center after this fire; and we don't believe

18   that's relevant.

19                          We also believe that such agreements

20   will improperly introduce collateral source into this

21   case.    There's a number of issues related to Social

22   Security, Medicaid, those types of things, that could

23   flow from that; and that's the basis of our motion in

24   that regard.

25                          THE COURT:     How would the collateral



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000551
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                                                                         31


 1   source evidence come into play if that agreement comes

 2   into evidence?

 3                       MR. THWEATT:      Well, there's been

 4   description from Ms. Wagner in her testimony that

 5   she received Social Security benefits.            She's a

 6   Medicaid -- her daughter's a Medicaid recipient.              That's

 7   what we're worried about here.

 8                       She's now the guardian, just at

 9   Four J's used to be -- I'm sorry -- just as -- the

10   caretaker just as Four J's used to be.            We don't want

11   the jury knowing about collateral source because of --

12                       THE COURT:     But my question is:        How

13   does the October 2nd, 2008, agreement raise collateral

14   source?   I don't understand the connection to the

15   collateral source.

16                       MR. THWEATT:      Because it's referenced

17   within the agreement.

18                       THE COURT:     Okay.     So the payments from

19   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

24   redact anything, as necessary, in the agreement.              Second

25   of all, the main reason we're objecting to this -- for



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000552
                                                             Volume 1
                                                                             32


 1   one thing, we plan to discuss the agreement and

 2   Ms. Wagner's care after the fire.             It goes directly to

 3   the issue of damages and mental anguish.

 4                          Second of all, we do plan on -- if not

 5   the agreement itself, a portion of the agreement, it

 6   talks about the rights of the patient and the rights of

 7   the individual.       That's something that predates the

 8   fire.    But specifically regarding this agreement, it

 9   is -- we believe we can redact any issue about payment

10   and that it is relevant to her continuing care.

11                          THE COURT:     How is it relevant?        What

12   material issue or fact is made more likely or less

13   likely by the admission of this agreement into evidence?

14                          MR. RAVAL:     The agreement is relevant

15   to show -- it goes to her damages.              It goes to her

16   mental anguish damages, that -- and the testimony we

17   expect that is going to come forward about what her

18   behavior was like after the fire, what -- what her

19   sleeping patterns were, and other things.

20                          The -- again, the agreement itself,

21   with payment redacted, we believe, is relevant to --

22                          THE COURT:     How is the agreement itself

23   relevant?     What does it matter that after the

24   agreement -- or after the fire there was an agreement

25   between Four J's and -- and Ms. Wagner?



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000553
                                                                Volume 1
                                                                          33


 1                       MR. RAVAL:     The fact that she was

 2   willing to continue staying on with Four J's for a

 3   period after the fire of about eight or nine months or

 4   getting treatment and care from people connected to

 5   Four J's is relevant to the damage issue.

 6                       THE COURT:     How?    I -- you're not --

 7   just telling me it's relevant isn't showing me it's

 8   relevant.

 9                       How does that make any issue about

10   damages more likely or less likely?

11                       MR. RAVAL:     If -- if she were -- in

12   some way blamed Four J's for what happened, it is less

13   likely that she would have continued getting services

14   from employees or people connected to Four J's.              She

15   continued to do so for a period after the fire of about

16   eight or nine months.

17                       THE COURT:     So the fact that she

18   continued to do business means that the plaintiff didn't

19   have any damages?

20                       MR. RAVAL:     No.    It goes strictly to

21   the mental anguish damages, that if she blamed Four J's

22   for what happened in the fire, it's more likely that she

23   would have stopped employing them.           She, in fact,

24   continued to employ them and use their services.              That

25   is relevant to mental anguish.



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000554
                                                             Volume 1
                                                                            34


 1                          THE COURT:     Mr. Thweatt, any response?

 2                          MR. THWEATT:      Well, the testimony at

 3   her deposition, Judge, was that she continued to use

 4   them -- her services because, really, she didn't know

 5   where else to turn, not because she was satisfied or

 6   happy with the services that had been provided,

 7   particularly up to the fire on September 4th, 2008.

 8                          So we certainly dispute that there's

 9   any sort of ratification that -- of Four J's by our

10   client postfire, and we just feel like it's going to be

11   evidence that's not going to be contributing to any sort

12   of fact at issue.

13                          What matters here is what happened on

14   September 4th, 2008, not what happened subsequent to

15   that.

16                          THE COURT:     All right.       23 is granted.

17                          24, Mr. Thweatt?

18                          MR. THWEATT:      Your Honor, there was an

19   investigation into this fire by a State agency.                 I think

20   the outcome of that investigation was inconclusive, and

21   we don't believe that an agency's determination, even if

22   it were conclusive or -- or it found no negligence on

23   behalf of Four J's, is something that the jury should be

24   considering in this case.           It's not relevant.       Even if

25   it is somehow relevant, it's substantially more



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000555
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                                                                            35


 1   prejudicial than probative.

 2                          A State agency is, in my mind, very

 3   similar to a law enforcement agency investigating a car

 4   accident.     The Courts routinely exclude those unless

 5   there's some sort of proper foundation laid for those,

 6   and it's just -- it's just not something we think the

 7   jury ought to be concerning themselves with in this

 8   case.

 9                          THE COURT:     So your -- the grounds of

10   your objection are what, relevance?

11                          MR. THWEATT:      Relevance, inadmissible

12   hearsay, and 403.        That's what I cited.

13                          THE COURT:      Response?

14                          MR. RAVAL:     Intervenor is attempting in

15   their exhibits to admit parts of this [sic] statements

16   from some of the witnesses that were interviewed by the

17   State agency that conducted this investigation.

18                          So some of these apparent hearsay

19   statements are being attempted to be admitted as

20   evidence.

21                          Second of all, the report itself, we

22   agree, is not determinative of any issue with regard to

23   negligence but it's instructive to the jury.                The fact

24   that the results were inconclusive shows that there's

25   not some kind of adverse finding against Four J's.



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000556
                                                                Volume 1
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 1                          The jury's entitled to understand that

 2   there was an investigation done, people were

 3   interviewed, what they said, what they told the -- what

 4   the agency was told by these employees and other

 5   witnesses, and what the end result was.

 6                          THE COURT:     Why does it matter to the

 7   jury -- since the end result was it was inconclusive,

 8   why does it matter to the jury?             How does it help the

 9   jury?

10                          MR. RAVAL:     Otherwise, the jury may

11   make the inference that there was some kind of adverse

12   result.

13                          THE COURT:      Well, are you asking to

14   exclude the investigation or just the report?

15                          MR. THWEATT:      The report, the

16   investigation's conclusions, all of it.               We don't want

17   any of it.

18                          THE COURT:     No evidence that there was

19   an investigation?

20                          MR. THWEATT:      That's correct, not by

21   the Texas Department of Aging and Disability Services.

22                          MR. RAVAL:     In addition, Your Honor, we

23   believe that their experts relied on this agency report

24   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
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                                                                           37


 1   testified.     They haven't been deposed in this case, and

 2   we're not sure what -- what they're going to say about

 3   that at all.     And we'll certainly abide by the Court's

 4   ruling.

 5                        THE COURT:     24 is granted if -- and

 6   this is just an order in limine.           So if for some reason

 7   you feel like a door has been opened or you need to get

 8   into it, you can ask to approach the bench and we'll

 9   take it up again.

10                        MR. RAVAL:     Yes, Your Honor.

11                        THE COURT:     All right.      Turning to

12   defendant's Motions in Limine, which are in dispute?

13                        MR. THWEATT:      Your Honor, we've agreed

14   to defendant's Motion in Limine 2 and 3.                 I believe

15   there are five of them.

16                        THE COURT:     Well, I've got -- the

17   Motions in Limine from defendants I've got were filed

18   March 11th.     Are these your latest and greatest?

19                        MR. RAVAL:     Your Honor, we filed an

20   amended Motion in Limine sometime last week.

21                        THE COURT:     And do you have a copy for

22   me?

23                        MR. RAVAL:     I do, Your Honor.

24                        THE COURT:     Okay.     So you agree to 2

25   and 3?



           Cause No. 2009-40925, Wagner Vs. Four J's, et al      000558
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 1                       MR. THWEATT:      We do, Your Honor.

 2                       THE COURT:     Mr. Sparks, is that

 3   consistent with your view?

 4                       MR. SPARKS:      Just a second, Your Honor.

 5                       Yes, sir.

 6                       THE COURT:      Okay.    So 2 and 3 are

 7   granted as agreed.       Start with Number 1.

 8                       MR. RAVAL:     Your Honor, regarding

 9   Number 1, it's our understanding that Ms. Wagner used a

10   wheelchair accessible van before the fire because of her

11   existing disabilities.       If there's a request for damages

12   pertaining to or retrofitting a wheelchair accessible

13   van out of some kind of claim about injuries related to

14   the fire, it's our contention that was a preexisting

15   condition and that is not evidence of damages related to

16   this fire.

17                       THE COURT:     There's a dispositive

18   motion.   That's denied.

19                       4?

20                       MR. RAVAL:     Your Honor, one of the

21   witnesses that we've -- will appear will -- by

22   deposition is Dr. Karen Gollaher.           She conducted a site

23   evaluation of Esperanza Arzola, the person who started

24   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
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 1   evaluations by Dr. Gollaher strictly pertain to the

 2   criminal trial and Ms. Arzola not being competent to

 3   stand trial.   That's not relevant to what happened --

 4   what goes on in this trial, and also we say it's overly

 5   prejudicial under Rule 403.

 6                       THE COURT:     How is it unfairly

 7   prejudicial?

 8                       MR. RAVAL:     A determine --

 9   determination that Ms. Arzola was unfit to stand trial

10   in a criminal trial has nothing to do with whether or

11   not she's a responsible third party in this case.                  It's

12   a different standard of proof.

13                       THE COURT:     So, she was declared

14   incompetent to stand trial?        She wasn't -- she wasn't

15   diagnosed as criminally insane or anything like that?

16   Is that what you're saying?

17                       MR. RAVAL:     That's my understanding,

18   Your Honor.

19                       THE COURT:     Okay.

20                       MR. RAVAL:     And to this day, she has

21   not stood trial.

22                       THE COURT:      Response?

23                       MR. THWEATT:      Your Honor, she can't be

24   determined, according to Dr. Gollaher's testimony, as

25   criminally insane until there is a determination that



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000560
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 1   she's competent to stand trial.          And Dr. Gollaher was

 2   appointed by the criminal district court in Fort Bend

 3   County to determine whether or not she was capable

 4   mentally of understanding the charges against her, of

 5   assisting with her defense, and Dr. Gollaher determined

 6   that she was not.

 7                       From that point, she was sent to a

 8   psychiatric institution, where she remains today, and

 9   will be there forever until qualified personnel

10   determine that she's competent to stand trial.

11                       So I just wanted to provide some

12   background on that for the Court.

13                       They are -- they have designated

14   Esperanza Arzola as a responsible third party; and I

15   believe the evidence in this case, at least in the

16   depositions thus far, indicates that they believe she is

17   solely responsible for the fire.

18                       Because of their position, we think

19   it's very important that the jury know -- I mean, I --

20   if -- were I them, I'd be waving around the indictment

21   and the criminal charges throughout this trial.

22                       If they're going to do that, I think we

23   need to be permitted to respond to that and to rebut it

24   with a showing that, look, that was a charge based upon

25   law enforcement, not upon any psychiatric or



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000561
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 1   psychological evaluation of this woman.

 2                       There's a lot that they knew about

 3   Ms. Arzola before the fire, and we'll address that.

 4   This issue is important to us, to show that, look,

 5   they're trying to blame somebody who's been determined

 6   incompetent to stand trial for something that they had a

 7   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

10   to get my arms wrapped around this.

11                       She's been declared incompetent to

12   stand trial.   This declaration occurred sometime after

13   the fire.

14                       MR. THWEATT:      Correct.

15                       THE COURT:     You're saying that's not

16   relevant; is that right?

17                       MR. RAVAL:     That's correct, Your Honor.

18                       THE COURT:     Okay.     Mr. Thweatt, how is

19   her postfire competency relevant to any of the claims or

20   defenses in this case?

21                       MR. THWEATT:      Because the psychologist

22   who made that determination, as part of the

23   decision-making process, reviewed her entire

24   psychological profile, much of which -- well, all of

25   which occurred before the fire.



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000562
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 1                          And then she also conducted an

 2   interview in the prison.          That's what occurred after the

 3   fire.    But the vast majority of it that she took into

 4   consideration and referenced in her report was prefire

 5   conduct, prefire behavior that Esperanza Arzola

 6   described.

 7                          And most of that -- much of that came

 8   from Four J's, Judge.         She went and got it from

 9   Ms. Arzola's defense -- criminal defense attorney who

10   had Four J's as a reference.            So she considered that

11   when she made her determination; and we think because of

12   that, her determination is highly probative on the issue

13   of whether or not Ms. Arzola should be blamed or --

14   responsible for this fire.

15                          THE COURT:     And do I understand your

16   argument is that really comes up because they're going

17   to -- you believe that Defense is going to try and

18   convince the jury that she is 100 percent to blame for

19   this or that, because there was a criminal act, they're

20   somehow absolved of liability for any of their

21   responsibility?       I'm trying to understand.

22                          MR. THWEATT:      Well, I think the

23   pleadings -- the pleadings that they have filed, Judge,

24   say that the criminal act absolves them from punitive

25   damage responsibility.          They've certainly have pled



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000563
                                                                Volume 1
                                                                               43


 1   that.

 2                          But in terms of the ultimate liability

 3   question, Ms. Uduma has testified that she does not

 4   believe that she personally is responsible for the fire

 5   or that her company is -- is responsible for the fire.

 6   And her testimony indicates unequivocally that Esperanza

 7   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

11   issue, we believe it's irrelevant, where Ms. Arzola is

12   currently located.        The fact that she is currently not

13   competent to stand trial or that she is awaiting the

14   ability to stand criminal trial or where she is is not

15   relevant to anything in this trial.

16                          THE COURT:     Response, Mr. Thweatt?

17                          MR. THWEATT:      I think the sole

18   evidentiary issue there, Your Honor, is that she is

19   still -- there was some suggestion by prior counsel for

20   the defendant that Ms. Arzola could be out on the

21   streets, the charges could have been dismissed.                   We

22   don't know exactly what happened to her.                   That was the

23   comment in a deposition, and that's just not true.

24                          Ms. Arzola is presently

25   institutionalized; and the only evidentiary issue there



             Cause No. 2009-40925, Wagner Vs. Four J's, et al      000564
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 1   is that I don't want them suggesting to this jury that

 2   she's never stood trial, she's never faced charges,

 3   anything like that.      It's a small point, but it depends

 4   on how expansive that limiting motion is read by the

 5   Court.   That's my concern.

 6                       I don't want them suggesting that, you

 7   know, there's never been a determination on whether she

 8   did it or not and that kind of thing.            That's my worry

 9   there.

10                       THE COURT:     5 will be granted.

11   Obviously, if for some reason we need to talk about her

12   current location, you can approach the bench, and we can

13   revisit that.

14                       MR. THWEATT:      Thank you, Your Honor.

15                       THE COURT:     By the way, Mr. Sparks, I

16   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,

21   Judge, in the -- the issue regarding the competency and

22   the sanity.     I think you may have raised what Mr. --

23   Dr. Gollaher indicated under the Code of Criminal

24   Procedure is that in order for her to make a

25   determination of sanity, she'd first have to make the



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000565
                                                             Volume 1
                                                                         45


 1   determination that she was competent.

 2                       And if a determination of incompetency

 3   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

 6   right.

 7                       Turning to exhibit lists... I've got

 8   the exhibit list of plaintiff, Patti J. Wagner, as

 9   guardian of Jenny Ann Wagner which was filed, looks

10   like, March 11th.

11                       Is this your latest and greatest,

12   Mr. Thweatt?

13                       MR. THWEATT:      No, Your Honor.       We have

14   an amended exhibit list.       The only change, we've added

15   Exhibit 58.

16                       THE COURT:     Do you have a copy of your

17   latest and greatest for me?

18                       MR. THWEATT:      I do.

19                       THE COURT:     While he's doing that, I've

20   got the second amended exhibit list of intervenor,

21   Wylette Taylor, filed October 11th.

22                       Mr. Sparks, is this your latest and

23   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
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 1   got an October 13th first amended exhibit list.               Is that

 2   your latest and greatest?

 3                        MR. RAVAL:     Your Honor, we have a

 4   second amended; but the only difference is we withdrew

 5   some exhibits.

 6                        THE COURT:     Okay.     Do you have a copy

 7   of your second amended for me, or is it in your notebook

 8   that you submitted?

 9                        MR. RAVAL:     I believe it is.

10                        THE COURT:     Okay.     That's fine.      I got

11   it.   I just want to make sure I'm up to speed.

12                        All right.     First things, we're going

13   to look at Plaintiff's exhibits.           My practice is I admit

14   exhibits that are not objected to pretrial.              If there's

15   an objection, usually we just do those exhibits the

16   old-fashioned way during the course of trial unless it's

17   truly one of those objections that I can rule on without

18   foundational testimony, like whether or not it was

19   responsive to a particular discovery request and,

20   therefore, should have been disclosed or whatnot.

21                        So looking at the second amended

22   exhibit list of Plaintiff, can you tell me which ones

23   you do not object to?

24                        MR. RAVAL:     We agree to Exhibits 1

25   through 33, 35, 36, 37, 39 and 40, 43 through 48.



           Cause No. 2009-40925, Wagner Vs. Four J's, et al   000567
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 1                        MR. THWEATT:      By the way, I should have

 2   said, we withdraw Plaintiff's Exhibit 48, Your Honor.

 3                        THE COURT:     All right.      Please

 4   continue.

 5                        MR. RAVAL:     50, 51, 52, 53, and that's

 6   all of them.    We have objections to the remaining

 7   exhibits.

 8                        THE COURT:     Okay.      Lois, will you let

 9   the jury know we'll be about another ten minutes,

10   please.

11                        Okay.    So Plaintiffs agree to 1 through

12   33, 35 to 37, 39 to 40 -- I'm sorry.            Defendants agree

13   to 1 to 33, 35 to 37, 39 to 40, 43 through 47, and 50 to

14   53?

15                        MR. RAVAL:     Correct, Your Honor.

16                        THE COURT:     All right.       Then do you

17   want to offer those into evidence, Mr. Thweatt?

18                        MR. THWEATT:      I do.

19                        THE COURT:     Am I pronouncing that

20   correctly?

21                        MR. THWEATT:      It's Thweatt, Your Honor.

22                        THE COURT:     Excuse me.      I'll get it

23   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
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 1   39 to 40, 43 to 47, and 50 to 53 are admitted.

 2                       (Plaintiff's Exhibits 1 through 33, 35

 3   through 37, 39, 40, 43 through 47 and 50 through 53 are

 4   offered and received in evidence.)

 5                       MR. RAVAL:     Your Honor, we're also okay

 6   with 58, the stipulation.

 7                       THE COURT:     58 is admitted.

 8                       (Plaintiff's Exhibit 58 is offered and

 9   received in evidence.)

10                       THE COURT:     Okay.     Next we'll look at

11   the Intervenor's.

12                       MR. SPARKS:      Judge, if I may, you asked

13   me about -- if the second was the latest and greatest.

14   Actually, I have a fourth that we need to disclose.                 I

15   want to give you that copy there.

16                       THE COURT:     Okay.     Sure.      Thank you.

17                       All right.     Looking at Intervenor's

18   fourth amended exhibit list, can you tell me which ones

19   you agree to?

20                       MR. RAVAL:     Your Honor, we're agreeing

21   to Exhibits 1, 2, 4 through 8, 10 through 12, and 15

22   through 24.

23                       THE COURT:     So that's 1, 2, 4 through

24   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
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 1                       THE COURT:     Do you want to offer those,

 2   Mr. Sparks?

 3                       MR. SPARKS:      I do, Judge.       Judge, we

 4   also would like to -- we're going to withdraw the --

 5   Number 12.

 6                       THE COURT:     Number 12 is withdrawn.

 7   So, Intervenor's Exhibits 1, 2, 4 through 8, 10, 11, and

 8   15 through 24 are admitted.

 9                       (Intervenor's Exhibits 1, 2, 4 through

10   8, 10, 11, and 15 through 24 offered and received in

11   evidence.)

12                       THE COURT:     And then looking at

13   Defendant's second amended exhibit list, Mr. Thweatt,

14   Mr. Sparks, can you tell me which ones you agree to?

15                       MR. THWEATT:      Your Honor, we agree to

16   Defendant's Exhibits 2, 3, 4, 7, 10, 11, 12, 15, 16, 18

17   through 25, 36 and 37, 59, 64 through 68 -- I'm sorry --

18   65 was withdrawn, it looks like on my sheet.             So 66

19   through 68 and then 70.

20                       THE COURT:     2 through 4, 7, 10 through

21   12, 15 and 16, 18 through 25, 36 and 37, 59, 64, 66

22   through 68, and 70?

23                       MR. THWEATT:      Correct, Your Honor.

24                       THE COURT:     And, Mr. Sparks, you're in

25   agreement on those?



          Cause No. 2009-40925, Wagner Vs. Four J's, et al    000570
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                                                                        50


 1                       MR. SPARKS:      I am, Judge.

 2                       THE COURT:     All right.       Do you want to

 3   offer those?

 4                       MR. RAVAL:     We offer those, Your Honor.

 5                       THE COURT:     All right.      So Defendant's

 6   Exhibits 2 through 4, 7, 10 through 12, 15 and 16, 18

 7   through 25, 36 and 37, 59, 64, 66 through 68, and 70 are

 8   admitted.

 9                       (Defendant's Exhibits 2 through 4, 7,

10   10 through 12, 15 and 16, 18 through 25, 36 and 37, 59,

11   64, 66 through 68, and 70 offered and received in

12   evidence.)

13                       THE COURT:     I'm told that the jury has

14   arrived.     They're out in the hallway.         So we're going to

15   go ahead and launch into voir dire.           We'll deal with any

16   objections to deposition excerpts after the jury's been

17   excused for the day.

18                       We should probably -- we will take a

19   lunch break.     It depends on how quickly we get through

20   the panel examination on when in the process we're going

21   to do it.     We'll also do opening statements.

22                       And, Mr. Thweatt, you should be ready

23   with your first witness to get going today.             We usually

24   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
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 1   4:45 today.      It's a long day for the jury.             But after

 2   today, we go until 5:00 every day, get a midmorning

 3   break at around the 10 o'clock hour, a midafternoon

 4   break around the 3 o'clock hour.             Those will be about

 5   15-minute breaks.        We start at 8:30.        We'll get a lunch

 6   break -- I forgot to give you-all the schedule earlier.

 7                          Make sure you look at your jury card

 8   information to make sure you've got pages for all 48

 9   jurors, please.       There was a copying mixup.

10                          MR. PLUMMER:      Judge, is it likely we're

11   to do opening statements and all that by lunchtime?

12                          THE COURT:      No.   If we complete jury

13   selection without having taken a lunch break, then we'll

14   take our lunch break between jury selection and opening

15   statements.      And we may have to take our lunch break

16   during the voir dire process, but I don't see us

17   finishing jury selection so soon that we can launch into

18   opening statements and finish that before lunch.

19                          MR. THWEATT:      Your Honor, one -- one

20   note:    Juror Number 46 appears to be Judge Elrod.

21                          THE COURT:     Yes.

22                          MR. THWEATT:      Okay.     Just so the

23   Court's aware.

24                          THE COURT:     All right.       You get about

25   five minutes to move your chairs around, so -- and make



             Cause No. 2009-40925, Wagner Vs. Four J's, et al    000572
                                                                Volume 1
                                                                        52


 1   sure you leave room for my court reporter to move over

 2   there.

 3                       (Break taken from 9:42 a.m. to

 4   9:49 a.m.)

 5                       THE COURT:     All right.       Back on the

 6   record.

 7                       I just visited with the jury out in the

 8   hallway informally to thank them for their service,

 9   welcome them to the court, and remind them to speak up

10   and say what they have to say during the jury selection

11   process, pointed out to them that until a verdict is

12   rendered, this is the only time that they get to talk to

13   the lawyers.   Of course the time the lawyers are talking

14   to them, it's a one-way street.

15                       So right now any of them that have

16   unavoidable scheduling conflicts are letting Deputy

17   Dewey, the bailiff, know.        She'll communicate that

18   information to me, and then I'll relay it to you.

19                       Generally, I let y'all voir dire any

20   jurors on those type of things unless it's something I

21   think I particularly really need to do or if it's

22   something that's so obvious that we can take care of it

23   without voir diring them.

24                       I rarely grant hardship exceptions,

25   especially those that would count as an exemption since



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000573
                                                             Volume 1
                                                                        53


 1   exemptions are already provided for and all they have to

 2   do is claim them before coming down.

 3                       But occasionally we have situations or

 4   the parties may agree that someone should be excused for

 5   whatever reason, so that's fine.          So we're about to get

 6   that information, and then I'll also -- I've got to do

 7   my mandated instructions to the jury before y'all start

 8   your examination.

 9                       At one point I will ask the lead lawyer

10   for each party to introduce themselves, their

11   co-counsel, and their clients.         I'll then briefly voir

12   dire as to if anybody knows or recognizes or thinks they

13   know or thinks they recognize the people that are

14   introduced.

15                       Oftentimes, I'll leave it at that.

16   Every once in awhile I may do follow-up voir dire on it,

17   but be ready to follow up voir dire if...

18                       All right.     Juror Number 1 has informed

19   the bailiff that she has no one to pick up her children

20   from school.   Juror Number 21 has a critically ill

21   mother-in-law who may need to be taken off of life

22   support on Wednesday.      Again, this is not official.

23   This is what they've told the bailiff.            And then Juror

24   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
                                                                         54


 1   questions of Juror Number 1 or Juror Number 21.

 2                       MR. THWEATT:      Your Honor, as you

 3   introduce the parties -- I note that Ms. Uduma is not

 4   here, and it may be difficult for the jury to know

 5   whether they recognize her or not if she's not

 6   physically present.

 7                       THE COURT:     They recognize the name.         I

 8   mean, that's -- we'll just deal with it.

 9                       MR. PLUMMER:      Judge, the 37 or 38 that

10   has --

11                       THE COURT:     37 had a business trip on

12   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

18   seated.

19                       Ladies and gentlemen, I want to welcome

20   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

23   like to introduce the Court's staff to you.             As you're

24   going to see them throughout this trial, I thought it

25   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
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 1   will see.

 2                          You've already met the court's bailiff,

 3   Lois Dewey.      She is the best in the business.               She's

 4   been the bailiff of this court since the late 1980s.                      I

 5   am the third judge who has worked for her.

 6                          Those of you who become members of the

 7   trial jury in this case are in for a very pleasant

 8   treat.    I get feedback from jurors all the time.

 9   Sometimes they're complimentary of me, sometimes they're

10   complimentary of the lawyers.            They're always

11   complimentary of Bailiff Dewey.             She is the best in the

12   business, and so you're very fortunate that you'll get

13   to work with her if you become a member of the trial

14   jury.

15                          You'll also see our court reporter,

16   Annette, over here to my right just on the other side of

17   the rail from y'all.         It's her job to take down

18   everything everybody in this courtroom says.                   In order

19   for her to do that in a way that has meaning for people

20   who want to read the transcript later, we're going to

21   have to follow a few formalities that we don't often

22   observe when we're talking to each other informally.

23                          First of all, when you respond to a

24   question, we need you to use your voice.                   Hand gestures,

25   shoulder shrugs, head nods, things of that nature, while



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 1   meaningful to those of us here in the courtroom because

 2   we can see it, don't show up very well on the transcript

 3   and are hard for people to understand later who are

 4   reading the transcript.       So when you respond, we need

 5   you to use your voice.

 6                       We also need you to use words when you

 7   respond.     Oftentimes when we're talking to each other,

 8   we'll use sounds like "huh-uh" or "uh-huh" or "mh-mmm."

 9   Again, she can try and write those down; but they're not

10   going to have any meaning to people who are reading them

11   later.     So when you respond, please use words.

12                       We also need people to avoid talking

13   over each other.     Again, this is something that's common

14   in informal speech.      You're talking to a friend or a

15   family member and you know what they're trying to say,

16   you start answering before they finish their sentence

17   because you know what each other's saying.

18                       When two people are talking, it makes

19   life very difficult for the court reporter.             It's hard

20   enough, if you can imagine writing down every syllable a

21   single person says.      But when two people are talking at

22   the same time, it is nearly impossible.

23                       So when you are -- when you are

24   talking, please wait until me or the lawyers have

25   finished saying what we have to say and then start your



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 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

 4   responding.

 5                          We also need you, when you respond, to

 6   give your juror number.          That way we know precisely who

 7   is talking.      We also would ask that you would raise your

 8   hand.    If you have an answer to a question, raise your

 9   hand, we'll call on you.

10                          When you are called on, then give your

11   juror number.       "I'm Juror Number 50, and my answer is

12   yes," or "I'm Juror Number 60, and my answer is no."

13                          You've also met the Court's

14   coordinator, Mr. Alex Garibay, over to my extreme left.

15   He and my assistant clerk, Di, here have a lot of work

16   to do.     This court has about 1700 active cases pending

17   before it besides the one that we're going to try today.

18                          Now, we can do it.        I've got a great

19   staff; and we do a pretty good job, I think, of making

20   sure that all the cases get the attention that they need

21   in order for them to move forward.              But sometimes it

22   requires multitasking.          So you'll see Mr. Garibay and

23   Ms. Purvis entering and exiting the courtroom from time

24   to time.

25                          It's not because they're not interested



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 1   in this case or that they don't value your time.                 It's

 2   that they have to go back to their offices and do some

 3   work on some of the other cases.             So please don't take

 4   it the wrong way.        They're really trying to do their

 5   best to make sure all cases get the attention they need

 6   to move forward and get to resolution.

 7                          Now, many of you may have been through

 8   the jury selection process before.              For those of you who

 9   have not, I thought I would take a few moments to

10   describe it to you.

11                          In Texas, as in all other states in the

12   United States, the parties to a lawsuit generally have a

13   right to a trial by jury.           The right to a jury trial is

14   one of the oldest rights in our legal system.                In fact,

15   it's older than the right to vote.

16                          The origins of our legal system's right

17   to a jury trial go back to at least the 1200s in

18   England.     One of the aspects of a trial by jury is the

19   jury selection process, a procedure which we call voir

20   dire.

21                          "Voir dire" is a French phrase that

22   means to tell the truth.          Although we often call this

23   part of a trial jury selection, it is more accurately

24   described as a process of juror deselection.

25                          The parties do not pick the jurors they



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 1   want on the jury so much as they strike a limited number

 2   of jurors from serving on the trial jury.

 3                       The first 12 jurors on the panel who

 4   are not struck for cause or struck by what is called a

 5   peremptory strike are empaneled as the trial jury for

 6   the case.

 7                       Now, this part of the trial is the only

 8   time when jurors can talk to the lawyers until after the

 9   verdict is rendered.      It is, therefore, helpful for each

10   of you to be candid and to speak up.

11                       Now, in a moment I will administer an

12   oath to you, give you some instructions, and ask a few

13   preliminary questions.       After that, the lawyers will ask

14   you some questions as a group.

15                       Once we have completed the group

16   questioning, we will take a break, at which time we may

17   ask a handful of you to come back in one by one to

18   answer some follow-up questions.

19                       After that break, we will bring you all

20   back in and the clerk will read the names of the members

21   of the trial jury and those people will come forward,

22   sit in the jury box, and we'll proceed.

23                       Now, I need to administer an oath to

24   you; so please raise your right hands.

25                       (Jurors sworn to the voir dire oath by



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 1   the Court.)

 2                       THE COURT:     Thank you.

 3                       I now have some additional instructions

 4   to give you.     Please listen carefully and let me know if

 5   you don't understand.

 6                          JUROR INSTRUCTIONS

 7                       THE COURT:      Members of the jury panel,

 8   we are here to select a jury.         12 of you will be chosen

 9   for the jury.     Even if you are not chosen for the jury,

10   you're performing a valuable service that is your right

11   and duty as a citizen of a free country.

12                       Before we begin, please turn off all

13   phones and other electronic devices.           While you are in

14   the courtroom, do not communicate with anyone through

15   any electronic device.       For example, do not communicate

16   by phone, text message, e-mail message, chat room, blog,

17   or social networking websites such as FaceBook, Twitter,

18   or MySpace.

19                       I will give you a number where others

20   may contact you in case of an emergency.                Do not record

21   or photograph any part of these court proceedings.                   It

22   is prohibited by law.

23                       If you are chosen for the jury, your

24   role as jurors will be to decide the disputed facts in

25   this case.     My role will be to ensure that this case is



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 1   tried in accordance with the rules of law.

 2                          Here is some background about this

 3   case:     This is a civil case.         It is a lawsuit, that is,

 4   not a criminal case.

 5                          The plaintiff is Patti J. Wagner, the

 6   guardian of Jenny Ann Wagner.            There's also -- excuse

 7   me.     I'm a little out of sorts.

 8                          There's also another plaintiff,

 9   Wylette Taylor, who is guardian of Derrick James.

10                          The defendants are a company called

11   Four J's Community Living Center, Inc., and

12   Anthonia Uduma.

13                          I've got some instructions I need to

14   give you.     Every juror must obey these instructions.

15   You may be called into court to testify about any

16   violations of these instructions.             If you do not follow

17   these instructions, you will be guilty of juror

18   misconduct and I might have to order a new trial and

19   start this process over again.            This would waste your

20   time and the parties' money and require the taxpayers of

21   this county to pay for another trial.

22                          Here are the instructions:          One, to

23   avoid looking like you are friendly with one side of the

24   case, do not mingle or talk with the lawyers, witnesses,

25   parties, or anyone else involved in the case.                You may



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 1   exchange casual greetings like "hello" and "good

 2   morning."    Other than that, do not talk with them at

 3   all.   They have to follow these instructions, too; so

 4   you should not be offended when they follow the

 5   instructions.

 6                         Two, do not accept any favors from the

 7   lawyers, witnesses, parties, or anyone else involved in

 8   the case.    And do not do any favors for them.             This

 9   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

15   discuss this case with anyone, even your spouse or a

16   friend, either in person or by any other means,

17   including by phone, text message, e-mail message, chat

18   room, blog, or social networking Web sites such as

19   FaceBook, Twitter, or MySpace.           Do not allow anyone to

20   discuss the case with you or in your hearing.

21                         If anyone tries to discuss the case

22   with you or in your hearing, tell me immediately.                    We do

23   not want you to be influenced by something other than

24   the evidence admitted in court.

25                         Four, the parties, through their



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 1   attorneys, have the right to ask you questions about

 2   your background, experiences, and attitudes.              They're

 3   not trying to meddle in your affairs.            They're just

 4   being thorough and trying to choose fair jurors who do

 5   not have any bias or prejudice in this particular case.

 6                       Five, remember that you took an oath

 7   that you will tell the truth.         So be truthful when the

 8   lawyers ask you questions, and always give complete

 9   answers.     If you do not answer a question that applies

10   to you, that violates your oath.          Sometimes a lawyer

11   will ask a question of the whole panel instead of just

12   one person.     If the question applies to you, raise your

13   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

19   introduce themselves to you, along with their clients.

20                       Mr. Thweatt.

21                       MR. THWEATT:      Good morning, ladies and

22   gentlemen.     I'm Lee Thweatt.      I represent this lady

23   here, Patti Wagner, and on behalf of her daughter,

24   Jenny.     This is my law partner, Joe Terry.           He'll be the

25   one speaking with you this morning.



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 1                        THE COURT:      Mr. Sparks.

 2                        MR. SPARKS:      Good morning.       How are you

 3   doing?    My name is Shelton Sparks, and this is Tiffany

 4   Harvey.   We represent Derrick James; and this is his

 5   guardian, Wylette Taylor.

 6                        THE COURT:     Mr. Plummer.

 7                        MR. PLUMMER:      Good morning, ladies and

 8   gentlemen.    My name is Jim Plummer.          I, along with my

 9   associate, Amar Raval, and our legal assistant,

10   Gabriella Trevino, represent Four J's Community Living

11   Center and Anthonia Uduma.

12                        Ms. Uduma will be here following jury

13   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

17   they know, recognize, or think they recognize any of the

18   lawyers who introduced themselves or their colleagues to

19   you just a moment ago?        If so, please raise your hand.

20                        (Hands raised.)

21                        THE COURT:      Yes.    You're Juror Number

22   42?

23                        PROSPECTIVE JUROR 42:         Yes.

24                        THE COURT:     Stand up, please.

25                        Who do you know or recognize?



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 1                          PROSPECTIVE JUROR 42:         I don't know

 2   him, but I recognize Mr. Thweatt because he's a member

 3   of my church.

 4                          THE COURT:     And what church do you go

 5   to?

 6                          PROSPECTIVE JUROR 42:         Christ the King

 7   Lutheran.

 8                          THE COURT:     All right.      Thank you.

 9                          Yes, Juror Number 46.

10                          PROSPECTIVE JUROR 46:         I recognize

11   several of the lawyers, particularly I recognize

12   Mr. Plummer, but only from seeing them in a professional

13   context.     I don't have a personal relationship with any

14   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

20   Mr. Plummer?

21                          PROSPECTIVE JUROR 6:         He represented my

22   sister.

23                          THE COURT:     Okay.     And how long ago was

24   that?

25                          PROSPECTIVE JUROR 6:         Probably about



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 1   ten years ago.

 2                          THE COURT:     I'm sorry?

 3                          PROSPECTIVE JUROR 6:         Probably about

 4   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

12   my business.

13                          THE COURT:     When was that?

14                          PROSPECTIVE JUROR 10:         In years --

15   probably two years ago.

16                          THE COURT:     Two years ago?

17                          PROSPECTIVE JUROR 10:         Uh-huh.

18                          THE COURT:     Has that representation

19   completed?

20                          PROSPECTIVE JUROR 10:         Yes.

21                          THE COURT:     Okay.     When did it finish?

22                          PROSPECTIVE JUROR 10:         Probably last

23   year.

24                          THE COURT:     Probably last year?

25                          PROSPECTIVE JUROR 10:         Uh-huh.



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 1                         THE COURT:     Okay.     All right.     Thank

 2   you.

 3                         Anyone else?

 4                         (No response.)

 5                         THE COURT:     All right.       Does anyone

 6   know, think they know, recognize, or think they

 7   recognize any of the parties who were introduced to you

 8   a few moments ago?

 9                         (No response.)

10                         THE COURT:     I see no hands.

11                         All right.     The attorneys will now

12   proceed with their -- their questions on examination for

13   the panel.

14                         Mr. Thweatt.

15                         MR. THWEATT:      Your Honor, Mr. Terry's

16   going to handle that for us.

17                         THE COURT:     Okay.     Mr. Terry, you may

18   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

23   morning.

24                         MR. TERRY:      Good morning.

25                         PROSPECTIVE JURORS:         (As a group)       Good



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 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

 5   feel.    I need your opinions, your biases.                There's no

 6   right or wrong answer in what we're doing here today,

 7   and let me tell you why that's really important.

 8                          This is a very important case, a very

 9   serious case, and there's very serious allegations and

10   very serious injuries, what we're dealing with here

11   today.     Okay?

12                          Because we all have feelings and biases

13   when we walked through that door today, every single one

14   of us -- you didn't form them when you got in here this

15   morning.     You came in with them, and it's how we grew

16   up, it's where we grew up, it's how we were raised.

17                          We all have different opinions and

18   biases based on different situations.               That's just who

19   we are; and that's what makes us this community, if you

20   will.    Okay?

21                          It's very important that you tell us

22   about those biases and those opinions.               There's no right

23   or wrong answer here today.           Okay?

24                          Now, if I were to ask you some

25   questions down at the water cooler, or if I was to run



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 1   into you at a Stop-and-Go and ask you some questions,

 2   I'm sure there's some of you I couldn't get to shut up,

 3   probably.

 4                          Just because you get in here, doesn't

 5   mean you have to clam up.           It doesn't mean you have to

 6   hold things inside.         If you have something -- if you

 7   have an answer to one of our questions, anyone's

 8   questions here today, please let us know.                  Raise your

 9   hand.    If I didn't see your hand raised, say, "Mr.

10   Terry, hey.      What about me?       I've got something to say."

11   Okay?

12                          That's what we need from you here

13   today, because eventually 12 of you are going to be up

14   here and this case is going to be in 12 of your hands.

15                          And again, very serious allegations,

16   very serious injuries; and this is my client's only

17   shot.    Okay?

18                          I want to tell you a little bit about

19   the case just to make sure that -- that you -- no one

20   knows about it or no one's recognized the facts.

21                          On September 4th, 2008, there was a

22   house fire.      And in this house were housed mentally

23   incapacitated, mentally retarded individuals, four of

24   them.    The house was owned by Four J's Community Living

25   Centers, Inc.; and that was owned by Ms. Anthonia Uduma.



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 1                       Now, why we're here today is because

 2   our client, Jenny Wagner, who was mentally retarded, had

 3   cerebral palsy, couldn't function without help.              That's

 4   why she was at this house.        She was badly burned and had

 5   injuries from smoke inhalation.          Okay?

 6                       Now, her mother, Ms. Jenny Wagner [sic]

 7   is here today.    She's acting as Jenny's guardian in this

 8   lawsuit.

 9                       Now, a lot of you might think, well, if

10   Jenny was the one who was injured, then why isn't she

11   here today?

12                       Well, lawyers -- we made the decision

13   not to bring Jenny to these proceedings, and she will be

14   presented during Ms. Wagner's questioning.              And so the

15   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

17   injuries and her mental state; and we hope that you

18   understand that decision.

19                       Now, this fire was started by another

20   resident with a cigarette lighter.           The plaintiffs

21   allege that she shouldn't have had access to this

22   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,



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 1   knows someone involved in the fire, knows anything about

 2   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

 6   questions.   Is everyone here in agreement -- or think

 7   it's important that a president or CEO of a company

 8   should be held responsible for the actions that the

 9   company takes?    Is everyone here in agreement with that?

10                       PROSPECTIVE JURORS:        (As a group) Yes.

11                       MR. TERRY:     Okay.     What about this:

12   Does everyone here think it's important that companies

13   shouldn't put the act of making money over safety?

14                       PROSPECTIVE JURORS:         (As a group)       Yes.

15                       MR. TERRY:     What about corporate

16   responsibility in today's day and age, corporate

17   responsibility, corporate accountability; does everyone

18   think in today's age, that that's pretty important?

19                       PROSPECTIVE JURORS:         (As a group)       Yes.

20                       MR. TERRY:     Now, what about the

21   individuals that run these companies -- say, for

22   example, the president and the CEO; who here is in

23   agreement that those individuals should be held

24   personally responsible, held accountable for the actions

25   of the corporation?



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 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

 7   general statement that's just not consistent with what

 8   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

14   hand raised?

15                        UNIDENTIFIED PROSPECTIVE JUROR:            I said

16   I disagree with that.

17                        MR. TERRY:     Okay.      And Mr. -- Mr.

18   McCraw?

19                        PROSPECTIVE JUROR MCCRAW:           Yes, sir.

20                        MR. TERRY:     Why is that?

21                        PROSPECTIVE JUROR MCCRAW:           Well, mainly

22   because in a lot of -- a lot of people in -- in

23   positions of responsibility and power, you can't be

24   100 percent held accountable with what people under you

25   do.   I mean, if -- if I -- if I enact -- if I'm a CEO of



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 1   a company and I enact certain policies, I can't

 2   guarantee that everybody's going to follow that all the

 3   time.

 4                          MR. TERRY:     Would you agree with me,

 5   sir, that --

 6                          PROSPECTIVE JUROR MCCRAW:            If I were

 7   the CEO of a company and somebody under me got me in

 8   trouble and it honestly wasn't my fault, I would -- I'd

 9   be really concerned.

10                          MR. TERRY:     And I guess you would have

11   to look at the evidence and the facts that surround

12   whatever happened.        Would you agree with that?

13                          PROSPECTIVE JUROR MCCRAW:            Yeah.      If

14   they're in order to be presented correctly, yeah.

15                          MR. TERRY:     Okay.     Who here, I guess,

16   would agree with Mr. McCraw?

17                          (Hands raised.)

18                          UNIDENTIFIED PROSPECTIVE JUROR:              I have

19   a question as to interaction.

20                          MR. TERRY:     Yes, sir.

21                          UNIDENTIFIED PROSPECTIVE JUROR:              Would

22   you please rephrase your question so I can -- are you --

23                          MR. TERRY:     Sure, sure.

24                          The question was, again:            Who here

25   would agree that, say, CEOs and presidents of a



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 1   corporation should be held personally responsible?

 2                       UNIDENTIFIED PROSPECTIVE JUROR:             Okay.

 3   That's what I wanted to know.         And when you say

 4   "personal liability," are you saying that beyond the

 5   corporate shield, beyond any insurance, that after

 6   something happens, that you -- if you didn't get enough,

 7   you go after the CEO and take his home?            You're talking

 8   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

14   believe there have to be certain limits.                I think there

15   are ways that you can hold people accountable and

16   responsible beyond stripping them of all their assets.

17                       MR. TERRY:     What if the facts showed

18   there was, I guess, knowledge on the part of the

19   president and CEO?

20                       UNIDENTIFIED PROSPECTIVE JUROR:             That

21   would be different.

22                       UNIDENTIFIED PROSPECTIVE JUROR:             Yeah.

23                       MR. TERRY:     So it depends on the facts

24   and the situation?

25                       UNIDENTIFIED PROSPECTIVE JUROR:             It



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 1   does.

 2                          MR. TERRY:     Depends on the evidence

 3   presented?

 4                          UNIDENTIFIED PROSPECTIVE JUROR:           Right.

 5                          (Hands raised.)

 6                          MR. TERRY:      Yes, ma'am.

 7                          PROSPECTIVE JUROR HARRISS:          I

 8   disagree -- or I agree with your statement.                I disagree

 9   with the other guy.

10                          MR. TERRY:     Okay.     And -- and that's --

11   you -- you agree with the statement that --

12                          PROSPECTIVE JUROR HARRISS:          There's too

13   many cases of the CEOs, the guys at the top, set the

14   tone for the company.         If they want everybody in their

15   company to be honest and aboveboard, they're honest and

16   aboveboard and they make sure that their staff and

17   everybody down the chain of command understand that.

18   We've had too many examples of CEOs that are less than

19   ethical, who -- or would turn a blind eye to whatever

20   they're -- you know, they're hired -- you know, their

21   staff below them are doing.

22                          So I just believe that, you know, the

23   CEO -- you get to the top because you have certain

24   skills.     You're getting paid boucoups of money.              You're

25   going to take that risk and you're going to take that



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 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

 6   understand we have a limited amount of time here today

 7   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

10   the lawsuit, what we have to prove to you, the jury, in

11   order to hold the defendants liable.

12                       That burden of proof is called

13   preponderance of the evidence.         Okay?     And what that

14   means is -- and you'll see it in a jury charge.

15                       THE COURT:     The Court will instruct the

16   jury on the burden of proof.

17                       Ladies and gentlemen, the term

18   "preponderance of the evidence" means the greater weight

19   of credible evidence admitted in this case.             A

20   preponderance of the evidence is not measured by the

21   number of witnesses or by the number of documents

22   admitted in evidence.

23                       For a fact to be proved by a

24   preponderance of the evidence, the jury must find the

25   fact is more likely true than not true.



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 1                       You may continue.

 2                       MR. TERRY:      Judge, do you mind if I

 3   give an example of tipping of the scales?

 4                       THE COURT:      Be careful.

 5                       MR. TERRY:     Okay.     As an example of

 6   that, what I like to use when I talk to juries like

 7   yourself, is the scales of justice.

 8                       If we, as the plaintiff, are able to

 9   put, say, one drop of water to tilt the scales into our

10   favor --

11                       THE COURT:     Mr. Terry, I gave the

12   definition.   That's not consistent with my definition.

13                       MR. TERRY:     All right.      Sorry, Your

14   Honor.

15                       What a lot of you might be familiar

16   with is the burden across the street, and that is beyond

17   a reasonable doubt.      That is the standard used in

18   criminal cases.

19                       That requires a lot higher burden than

20   what we're dealing with here today, as the judge has

21   explained to you what that standard is.

22                       My question to you is:         Is there anyone

23   here who would not be able to look at the evidence

24   and -- and view it in a preponderance of the evidence

25   standard versus a reasonable doubt -- beyond a



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 1   reasonable doubt?

 2                       (No response.)

 3                       MR. TERRY:     So everyone here is fine

 4   with looking at the facts, liability, and damages by the

 5   standard as the judge has instructed you, and that is

 6   preponderance of the evidence?         Everybody -- everyone's

 7   fine with that?

 8                       PROSPECTIVE JURORS:         (As a group)       Yes.

 9                       MR. TERRY:     Next I'd like to talk to

10   you about the damages portion of this case.             And as we

11   explain to a jury, a lawsuit is made up of two -- two, I

12   guess, issues:    Number one, liability, who done it,

13   whose fault is it; number two would be damages, say, how

14   badly is someone injured, what are their medical bills.

15                       Again, those are viewed by a

16   preponderance of the evidence standard.

17                       One of the elements of damages in this

18   case is going to be pain and suffering.            This is a burn

19   case, and so judging -- excuse me -- pain and suffering

20   in that aspect, it's going to be difficult for some of

21   you because pain and suffering is not an objective form

22   of damages.   We don't have a machine that we could plug

23   Jenny in and spit out a number, and so that might be

24   hard for some of you to come up with a number.

25                       A machine can't judge hope, can't judge



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 1   pain, can't inspire a dream.         You, as the jury, are the

 2   individuals to do that because only human beings can

 3   truly judge another human being's loss.

 4                       My question to you is -- and I'll start

 5   with the front row over here (indicating) -- would

 6   you -- who here on the front row disagrees with this

 7   statement:   If supported by the evidence, a person is

 8   entitled to an award for pain and suffering?             Who

 9   disagrees with that statement?

10                       (No response.)

11                       MR. TERRY:     Nobody?     Okay.

12                       Over here (indicating), front row, tell

13   me, please, who disagrees with this statement:                If

14   supported by the evidence, a person is entitled to an

15   award for pain and suffering.

16                       Does anyone on the front row here

17   disagree with that statement?

18                       PROSPECTIVE JURORS:         (As a group)       No.

19                       PROSPECTIVE JUROR DOMINGUEZ:          I

20   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



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 1   that, please?

 2                          PROSPECTIVE JUROR DOMINGUEZ:            Just that

 3   I think there should be a chance that they could be

 4   given a reward; but I think it's possible to endure pain

 5   and suffering without having, like, an award that's

 6   entitled to you.

 7                          MR. TERRY:     And maybe I chose the words

 8   poorly.     If supported by the evidence --

 9                          PROSPECTIVE JUROR DOMINGUEZ:            Uh-huh.

10                          MR. TERRY:      I guess what you're telling

11   me, even if it's supported by the evidence, someone

12   might not be entitled to -- or get an award for pain and

13   suffering, even if the evidence shows it?

14                          PROSPECTIVE JUROR DOMINGUEZ:            Well, you

15   mean the evidence shows that they -- that they have

16   suffered unfairly or --

17                          MR. TERRY:     That they suffered pain and

18   suffering, that they experienced pain and suffering.

19                          PROSPECTIVE JUROR DOMINGUEZ:            Sure.     I

20   mean, I just -- I think my problem is with the word

21   "entitled" maybe.

22                          MR. TERRY:     Okay.     Okay.      And that's

23   fine.     So I guess what you're saying is there is the

24   possibility that if the evidence would show it, not that

25   they're entitled to it, but you could award it?



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 1                       PROSPECTIVE JUROR DOMINGUEZ:           Sure.

 2                       MR. TERRY:     Okay.      The second row, I'll

 3   ask the same question with Ms. Dominguez's suggestion.

 4                       Please tell me who disagrees with this

 5   statement:    That is, a person can be awarded money

 6   damages for pain and suffering if supported by the

 7   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

12   row would not be able to award money damages for pain

13   and suffering even though it was supported by the

14   evidence that was shown?

15                       (No response.)

16                       MR. TERRY:     Okay.      Thank you.

17                       Finally, last row, Jurors 33 through

18   40, same sentence:     If supported by the evidence, would

19   you be able to award money damages for pain and

20   suffering?    Who disagrees with that statement?

21                       (No response.)

22                       MR. TERRY:     Thank you.

23                       Lastly, Jurors 41 through 48, again,

24   same state -- same statement, would you be able to award

25   money damages for pain and suffering or -- scratch that.



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 1   I'm sorry.

 2                       The statement being, a person is

 3   entitled or should be awarded damages, money damages,

 4   for pain and suffering.       Who disagrees with that

 5   statement?

 6                       (No response.)

 7                       MR. TERRY:     Thank you.

 8                       Lastly, I want to talk to you a little

 9   bit about what's called punitive damages.               And these are

10   damages that are separate from the damages we will be

11   seeking on behalf of Jenny Wagner.           These are damages

12   that are intended to, say, punish a company to deter or

13   prevent the type of conduct which brought the initial

14   lawsuit -- for example, in this case, to deter future

15   fires, to try to prevent future fires.

16                       Is there anyone here -- and we'll just

17   say the first three rows over here (indicating):               Is

18   there anyone here who would not be able to award

19   punitive damages even though supported by the evidence?

20                       (No response.)

21                       MR. TERRY:     So everyone here would be

22   able to -- if supported by the evidence, to award

23   punitive damages; is that correct?

24                       PROSPECTIVE JURORS:         (As a group)        Yes.

25                       MR. TERRY:     Over here (indicating),



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 1   same question:    Is there anyone on these three rows who

 2   would not be able to award punitive damages even though

 3   supported by the evidence?

 4                       PROSPECTIVE JUROR 25:         I just have a

 5   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

10   the -- if the facts and circumstances rise to the level

11   of the burden -- but when you're talking about punitive

12   damages, is -- you're looking for those damages from the

13   corporation as well as the individual?

14                       MR. TERRY:     Yes.

15                       PROSPECTIVE JUROR 25:         I would try to

16   follow the law, obviously; but it would really depend on

17   what those circumstances are and how much of that

18   control was in the hands of the individual before I feel

19   they should be punished.

20                       MR. TERRY:     Okay.

21                       PROSPECTIVE JUROR 25:         A corporation, I

22   may hold to -- you know, not so much; but that

23   individual is going -- it's really going to be based on

24   the facts.

25                       MR. TERRY:     Okay.     So going in, you



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 1   would have trouble, at least just with the individual

 2   versus the corporation?       I guess you would hold the

 3   individual to a higher standard?

 4                       PROSPECTIVE JUROR 25:         I would really

 5   try to follow the law; but honestly, you know, I -- it's

 6   so hard with what you're giving us.           And some of the

 7   things that we've talked about -- you know, yeah, I

 8   think CEOs and corporations should be responsible.                 But

 9   what are the acts?     Were the acts within the delegation

10   of duties to other people, or were they unforeseen?

11   What -- so I would have a hard time maybe, and I'm --

12   and I really mean that based on the facts -- to punish

13   an individual as opposed to the corporation, depending

14   on what role that individual truly played and the

15   knowledge and access and whatnot.

16                       MR. TERRY:     Okay.

17                       PROSPECTIVE JUROR 25:         Just trying to

18   be fair.

19                       MR. TERRY:     No.     And I greatly

20   appreciate that, I really do.

21                       Had a question over here (indicating),

22   Juror Number 33?

23                       PROSPECTIVE JUROR 33:         I pretty much

24   feel the same way that she does, but the evidence would

25   definitely have to support it.



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 1                       MR. TERRY:     Okay.     Now, do you also --

 2   or do you hold, say, the individual to a kind of a

 3   higher standard or proof, I guess?           You would require

 4   more evidence against the individual as opposed to the

 5   company?

 6                       PROSPECTIVE JUROR 33:         Yes.

 7                       MR. TERRY:     Okay.

 8                       PROSPECTIVE JUROR 12:         I feel the same

 9   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

19   way, also.

20                       MR. TERRY:     Number 40?        Okay.

21                       Let's just go ahead and just do it by

22   the rows.

23                       Anyone else agree with that

24   statement -- with these individuals who say, yeah, we're

25   going to hold the individual to kind of a higher, you



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 1   know, standard of proof.       We're going to make you,

 2   plaintiff, give us more evidence to prove that the

 3   individual is liable?

 4                       UNIDENTIFIED PROSPECTIVE JUROR:              I

 5   think you'd have to add me to that group.

 6                       MR. TERRY:     Okay.     Hold your hands up

 7   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

14   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



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 1   side:     Who here would require the plaintiff to prove --

 2   to show more evidence on punitive damages as opposed to

 3   proving the company was negligent?              Do you understand

 4   that question?       Okay.

 5                          In this section (indicating), Number

 6   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

10   backwards.

11                          MR. TERRY:     Sure, and it probably was.

12                          Basically the question is:          Who would

13   require us, as the plaintiffs, to show more evidence as

14   to punitive damages as against the individual than the

15   company?

16                          (Hands raised.)

17                          MR. TERRY:     Yes, sir.

18                          UNIDENTIFIED PROSPECTIVE JUROR:            We do

19   have folks that -- well, maybe the law will explain what

20   is meant by punitive damages.

21                          MR. TERRY:     I'm sorry, sir?

22                          UNIDENTIFIED PROSPECTIVE JUROR:            There

23   are a few folks, sir, that are not familiar with the

24   word of law.      Please explain what is meant.

25                          MR. TERRY:     Okay.     Again, punitive



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 1   damages are those damages that are separate and apart

 2   from what we were seeking on behalf of Jenny Wagner, who

 3   was burned in the fire.          Punitive damages are those

 4   damages which are intended to go against the defendants

 5   in this case to deter the type of conduct which brought

 6   on the basis for this lawsuit -- i.e., the fire that

 7   occurred.

 8                          We're saying it could have been

 9   prevented; and we'd like to deter that, basically.                    That

10   is punitive damages in a nutshell.

11                          Any further questions in that regard?

12                          After I've provided that explanation,

13   has anyone changed their mind as to the question I

14   asked?

15                          (No response.)

16                          MR. TERRY:     Guys, that's all I have for

17   you right now.       Again, we really appreciate you being

18   here.    As a jury, you have the power to take children

19   away from their parents, as a jury you have the power to

20   put people to death.         Here you have the power to do

21   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,



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 1   ladies and gentlemen, good morning.           How are y'all

 2   doing?

 3                       PROSPECTIVE JURORS:         (As a group)         Good

 4   morning.

 5                       MR. SPARKS:      I'm Shelton Sparks; and we

 6   represent Derrick James, who is the heir to Tanya James.

 7   And Tanya James is not here and she won't be.               She died

 8   in the fire.   Wylette Taylor is the guardian for

 9   Derrick James because he has special needs, and he won't

10   be here at all.    But this photo back here is a photo of

11   Tanya James, and we represent the heir to her in

12   reference to the pain and suffering she endured prior to

13   her dying.

14                       Couple of questions... Mr. Terry did a

15   good job, but there were some people that indicated they

16   knew some of the people involved.          I just want to get an

17   understanding of some of those relationships before we

18   go forward.

19                       I think -- is it Juror Number 6,

20   Ms. Soto?

21                       PROSPECTIVE JUROR SOTO:             Uh-huh.

22                       MR. SPARKS:      You indicated you knew

23   Mr. Plummer:   Is that right?

24                       PROSPECTIVE JUROR SOTO:             Yes, yes.

25                       MR. SPARKS:      Now, would it be fair, in



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 1   your opinion, to sit on this jury to make a

 2   determination about the liabilities and responsibilities

 3   and accountabilities of somebody else that he's

 4   representing, having previously represented you?                  Do you

 5   think that would be fair?

 6                       PROSPECTIVE JUROR SOTO:             (Nods head.)

 7                       MR. SPARKS:      You could sit that

 8   relationship aside you've had with Mr. Plummer

 9   previously and, if you were on this jury, render a

10   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

17   young lady.   And I'm kind of bad with the names, and

18   we've kind of got you guys numbered.           I think you're

19   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

24   Rodriguez.

25                       MR. SPARKS:      Ms. Rodriguez, how are you



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 1   today?

 2                         PROSPECTIVE JUROR RODRIGUEZ:          Fine.

 3                         MR. SPARKS:      Not going into the nature

 4   and depth of the relationship you had with Mr. Plummer

 5   when he represented you.         You indicated, I thought, that

 6   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

 9   to sit on this jury, having had that experience with him

10   being your lawyer and him representing other clients,

11   that you could be a fair representation [sic] to listen

12   to the evidence and make a determination based on it and

13   only it and nothing about your prior relationship with

14   him?

15                         PROSPECTIVE JUROR RODRIGUEZ:          No, I

16   don't think so, because -- which is going to make it

17   fair, you know.

18                         MR. SPARKS:      And that's what we want.

19                         PROSPECTIVE JUROR RODRIGUEZ:          And it's

20   two separate things.

21                         MR. SPARKS:      Okay.

22                         PROSPECTIVE JUROR RODRIGUEZ:           It's not

23   personal in each way --

24                         THE COURT:     Can you speak up, ma'am?

25                         PROSPECTIVE JUROR RODRIGUEZ:           It's not



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 1   personal on each way.        It's just like, you know, trial.

 2                       MR. SPARKS:      Yeah.

 3                       PROSPECTIVE JUROR RODRIGUEZ:          I mean,

 4   you know, I -- it's just like my business, you know.                 My

 5   employees are -- if they're relatives, they're my

 6   employees, nothing personal there.           So we're just --

 7                       MR. SPARKS:      Right.

 8                       So you don't think you would be a fair

 9   representation to sit on this panel; is that correct?

10                       PROSPECTIVE JUROR RODRIGUEZ:          It would

11   be okay.

12                       MR. SPARKS:      Thank you very much,

13   ma'am.     Appreciate that.

14                       Was there another person that indicated

15   they knew Mr. Plummer besides Juror Number 46?

16                       How are you doing, Judge?

17                       UNIDENTIFIED PROSPECTIVE JUROR:

18   Terrific.     How are you?

19                       MR. SPARKS:      Fine, ma'am.

20                       Anybody else?

21                       There was another -- I believe a lady

22   indicated she went to church with Mr. Thweatt; is that

23   correct?

24                       UNIDENTIFIED PROSPECTIVE JUROR:           Yes.

25                       MR. SPARKS:      Let me ask you, ma'am:



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 1   Not getting into how frequently he comes to church,

 2   anything about that relationship, if you were to sit on

 3   this panel, you think would cause you to be more fair to

 4   the side that Mr. Thweatt is on versus the side that

 5   Mr. Plummer represents?

 6                          UNIDENTIFIED PROSPECTIVE JUROR:            No.   I

 7   don't know Mr. Thweatt.          I just recognize him.

 8                          MR. SPARKS:      Okay.    Okay.      So that

 9   would have no bearing whatsoever in your deliberations

10   on the evidence.

11                          UNIDENTIFIED PROSPECTIVE JUROR:            Not at

12   all.

13                          MR. SPARKS:      Is that correct?

14                          UNIDENTIFIED PROSPECTIVE JUROR:            That's

15   correct.

16                          MR. SPARKS:      Okay.    Thank you very

17   much.

18                          There was -- oh, Juror 26, how are you

19   doing?

20                          PROSPECTIVE JUROR 26:         I'm fine.

21                          MR. SPARKS:      Good, good.        I saw you

22   shaking your head, nodding; and I wasn't certain if it

23   was in reference to the comments that was made by the

24   young lady next to you, Juror 25, or one of the other

25   jurors.



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 1                       Do you recall when you did that at all?

 2                       PROSPECTIVE JUROR 26:         I know I did

 3   earlier when we were talking; but, I mean, I think it's

 4   really hard to take sides either way until the evidence

 5   is presented to me --

 6                       MR. SPARKS:      Yes, ma'am.

 7                       PROSPECTIVE JUROR 26:         -- in my

 8   opinion.   So --

 9                       MR. SPARKS:      So your statement is

10   although you were agreeing on some things and maybe not

11   necessarily on the others --

12                       PROSPECTIVE JUROR 26:         Yes, sir.

13                       MR. SPARKS:      -- you're the type of

14   person that you wouldn't make a decision --

15                       PROSPECTIVE JUROR 26:         Exactly.

16                       MR. SPARKS:      -- about any of the facts

17   in this case until you heard all evidence; is that

18   correct?

19                       PROSPECTIVE JUROR 26:         Exactly,

20   exactly.

21                       MR. SPARKS:      And that's basically what

22   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?



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 1                        PROSPECTIVE JUROR KEATS:            How are you

 2   doing?   Fine.

 3                        MR. SPARKS:      Good morning to you.

 4                        You had some comments about corporate

 5   responsibility, I guess.        Is that a fair assessment?

 6                        PROSPECTIVE JUROR KEATS:            Not exactly,

 7   no.

 8                        MR. SPARKS:      Share with me what you had

 9   some concerns about in reference to Mr. Terry's talking

10   about the corporation --

11                        PROSPECTIVE JUROR KEATS:            As far as --

12   you know, it's easy to accuse and then find enough

13   evidence maybe to get some jury to make a big award and

14   strip someone of their assets in spite of the fact they

15   may not really have had much to do, although they're --

16   it's under their purview and responsibility as a CEO or

17   whatever, they -- you know, purging them -- if you hurt

18   their corporation, they're going to get hurt anyway.

19                        There are ways of punishing people, but

20   I don't believe you should go after their personal

21   assets unless you can truly show there's a higher burden

22   of proof they really were complicit in bringing about

23   the -- whatever evil the corporation has supposedly

24   committed.

25                        MR. SPARKS:      The law says there are



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 1   situations that may allow it and situations that may

 2   not.    If, in fact, you sat on this jury panel and we

 3   were to prove to you the situation that did allow it, do

 4   you think you could follow the law in that regard or

 5   your feelings and your values wouldn't allow you to do

 6   that?

 7                          PROSPECTIVE JUROR KEATS:            If you're

 8   talking about going after somebody personally for

 9   something they -- without having to prove that they

10   really and truly were on board and knew what was going

11   on -- is that what you're saying?

12                          MR. SPARKS:      No, that's not what I'm

13   saying.     What I'm saying is, and what we're saying:

14   People can do business in various forms in our society.

15   Some people can set up a corporation and that

16   corporation acts as an entity but it's run by people.

17   And if the corporation acts up, there are provisions in

18   the law that allow the corporation to be held

19   accountable and the person who ran it.

20                          And if, in fact, we prove that both the

21   corporation was at fault and the owner of the

22   corporation, by law, was also deemed to be at fault,

23   then you could hold both of them accountable.

24                          PROSPECTIVE JUROR KEATS:            I could,

25   yeah.     I mean, I don't think you should be able to act



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 1   irresponsibly and in an antisocial manner through your

 2   corporation --

 3                       MR. SPARKS:      Okay.

 4                       PROSPECTIVE JUROR KEATS:             -- if that's

 5   your intent.     But you really have to show me that the --

 6   I mean, how many corporations are just sort of a -- an

 7   entity that, perhaps, somebody controls that doesn't

 8   know that much about or they just, you know, started it

 9   to buy their insurance for their fleet of cars or

10   whatever or a management company to --

11                       MR. SPARKS:      Yes, sir.

12                       PROSPECTIVE JUROR KEATS:             -- put a

13   little layer of --

14                       MR. SPARKS:      And I don't mean to cut

15   you off, but the gentleman sitting next to you -- is it

16   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

21   speaking up earlier, you kind of raised your hand on

22   some things.     Are you in agreement with what he says?

23                       PROSPECTIVE JUROR HILL:             I kind of

24   believe that you're going to have to prove that that

25   person was incompetent enough to not know what was going



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 1   on because I'm going to say the man that's supposed to

 2   be running the show better know what's going on.

 3                         And if he's saying he's incompetent and

 4   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

 7   show of hands on the front row who adheres to the

 8   statement made by Mr. Hill.

 9                         (Hands raised.)

10                         MR. SPARKS:      You're Ms. -- Juror Number

11   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

17   number one?     What about row number two?

18                         UNIDENTIFIED PROSPECTIVE JUROR:             I'm

19   sorry.   I -- could you repeat it?           I think I've gotten

20   confused.

21                         UNIDENTIFIED PROSPECTIVE JUROR:             Thank

22   you.

23                         UNIDENTIFIED PROSPECTIVE JUROR:             Yeah.

24                         MR. SPARKS:      Well, I was asking did you

25   agree with the statement made by Mr. Hill, who was



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 1   saying that -- if I may paraphrase him -- that it had to

 2   be a lot of proof showing to him that the person running

 3   the show, the corporation, didn't know what was going

 4   on?

 5                        UNIDENTIFIED PROSPECTIVE JUROR:              That's

 6   right.

 7                        MR. SPARKS:      And if they were

 8   incompetent, he would think that something was wrong

 9   with them and he would think -- he would hold them

10   liable for their actions of their company.

11                        UNIDENTIFIED PROSPECTIVE JUROR:              I

12   agree with that.

13                        MR. SPARKS:      You agree with that?            Can

14   I get your number?

15                        PROSPECTIVE JUROR 20:         Number 20.

16                        MR. SPARKS:      Number 20?

17                        All right.     What about you, sir, Mr. --

18   Mr. -- Juror Number 19, Mr. Talton?

19                        PROSPECTIVE JUROR TALTON:           Right.       I

20   agree with that.

21                        MR. SPARKS:      You agree with that?

22                        PROSPECTIVE JUROR TALTON:           Yeah.

23                        MR. SPARKS:      What about you, Mr. --

24   Juror Number 18.      I can't read my own handwriting here.

25   How are you doing, sir?



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 1                          PROSPECTIVE JUROR 18:         The person that

 2   died was a kid?

 3                          MR. SPARKS:      No, sir.     It was a -- she

 4   was a woman.      She also had special needs, and she was an

 5   adult.

 6                          The child is her heir and is bringing

 7   this cause of action on her behalf, and he is unable to

 8   be here because of his disabilities.               And his

 9   court-appointed guardian is here on his behalf.

10                          PROSPECTIVE JUROR 18:         Well, when they

11   got burned, was any of them -- was it a kid?                 Was it a

12   child that got burned?

13                          MR. SPARKS:      No, sir.

14                          PROSPECTIVE JUROR 18:         They were both

15   adults?

16                          MR. SPARKS:      They were chronologically

17   adults.     However, based upon the psychological problems

18   that they had, they didn't have the ability, like you

19   and I, to be able to function and do some of the things

20   that we do.      And they were in special -- in a special

21   care situation.

22                          How does that make a difference in your

23   mind?

24                          PROSPECTIVE JUROR 18:         Well, I mean,

25   just a kid dying, you know, getting burned up, kind of



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 1   horrible.    An adult dying and getting burned up is kind

 2   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 --

 4   if they were kids, that's all, because the way that

 5   young man over there was sounding made it sound like

 6   they were children.

 7                         MR. SPARKS:      Yes, sir.     Yes, sir.         No.

 8   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

13   like Mr. Hill?      Mr. Hill's right here in the front

14   row --

15                         UNIDENTIFIED PROSPECTIVE JUROR:             Yeah,

16   yeah, right.

17                         MR. SPARKS:      -- saying that the

18   company, the business -- he would hold them to a higher

19   standard.

20                         UNIDENTIFIED PROSPECTIVE JUROR:             Yes,

21   sir.

22                         MR. SPARKS:      All right.         Mr. Jones,

23   Number 12, how are you, sir?

24                         PROSPECTIVE JUROR JONES:             I'm fine.

25                         MR. SPARKS:      Good, good.         On some of



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 1   the -- the background information we get, we get a

 2   chance to look at it and kind of surmise the experts

 3   and -- I mean, not the experts -- but the experiences

 4   that those individuals had in life and some of the --

 5   the relationships they had and what they do on a

 6   day-to-day basis and how they may bring that information

 7   to the jury pool if so selected.             It's sort of like

 8   bringing spices to a gumbo, kind of put everybody's in

 9   there and come up with something very good.                 And that

10   would be the jury, hopefully get a verdict based on

11   that.

12                          Based on your information, we didn't

13   get one of our ingredients; and I wanted to ask you --

14   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

19   may ask?

20                          PROSPECTIVE JUROR JONES:            I'm on

21   24-hour call.       Whenever there's a big fire in the city,

22   I'm, like, one of the -- I'm the first one to go in.

23                          MR. SPARKS:      Okay.    So you work with

24   the fire department?

25                          PROSPECTIVE JUROR JONES:            Correct.



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 1                       MR. SPARKS:      Okay.     Are you employed

 2   through the City of Houston?

 3                       PROSPECTIVE JUROR JONES:            I am.

 4                       MR. SPARKS:      Okay.     All right.       What

 5   are -- what are your thoughts in terms of corporate

 6   responsibility?

 7                       PROSPECTIVE JUROR JONES:            Well, I agree

 8   with Mr. Hill.    I mean, if there's a responsibility

 9   higher up, it would have to really be shown beyond a

10   shadow of a doubt that he was aware of it, to make

11   sure -- especially if you're going after him personally.

12                       But if it can't be proved, I believe it

13   would be the corporation, in my opinion.

14                       MR. SPARKS:      Now, you said something

15   about a shadow of a doubt.        That's another burden of

16   proof that we like to talk about.

17                       Now, the judge indicated all we're held

18   to is preponderance of the evidence over here in a civil

19   matter.   Shadow of a doubt, beyond a reasonable doubt,

20   that's more of a criminal standard that's applicable

21   across the street.     Okay?

22                       PROSPECTIVE JUROR JONES:            Do you think

23   it would be criminal if he allowed it to happen?

24                       MR. SPARKS:      Well --

25                       THE COURT:     This is not a criminal



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 1   case.    This is a court that handles civil lawsuits, and

 2   so we're addressing the civil lawsuit that was filed in

 3   this matter.

 4                          PROSPECTIVE JUROR JONES:            Okay.

 5                          MR. SPARKS:      And that kind of goes back

 6   to, I think, what Ms. -- Juror Number 10, Ms. Rodriguez

 7   [sic].

 8                          PROSPECTIVE JUROR DOMINGUEZ:

 9   Dominguez.

10                          MR. SPARKS:      Ms. Dominguez?

11                          PROSPECTIVE JUROR DOMINGUEZ:            Yes.

12                          MR. SPARKS:      -- was saying about

13   entitlement.      You know, she kind of had a problem with

14   entitlement.

15                          And it's not necessarily that people

16   are entitled to something.           It's just that the law

17   provides that if you're injured as a result of someone

18   else's negligence and you so find as a jury that that

19   person should be awarded something to reimburse them, to

20   make them whole, then you can make that determination.

21                          An entitlement is not something that

22   they're entitled to.         However, you have the power to

23   make an award based upon the evidence that you find to

24   what degree they were damaged, injured, hurt, harmed in

25   any kind of way.



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 1                       Juror 25, yes, ma'am, you were asking

 2   some questions about punitive damages?

 3                       PROSPECTIVE JUROR 25:         Uh-huh.

 4                       MR. SPARKS:      All right.         Is there

 5   anything in your professional relationship, cases you've

 6   worked on, that would cause you to be a little bit

 7   more -- well, not a little bit more; but would cause you

 8   to take those relationships into the facts of this case

 9   if you were to sit on this jury panel?

10                       PROSPECTIVE JUROR 25:         I'm not sure I'm

11   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

17   cases through your profession.         Fair assessment?

18                       PROSPECTIVE JUROR 25:         Predominantly

19   criminal cases.

20                       MR. SPARKS:      Anything about those

21   relationships with plaintiff or defendant, not knowing

22   what side of the bar you're on, that would cause you to

23   be -- would cause you to have a predisposition toward

24   the relationship on this case, if and so [sic] you were

25   on this panel?



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 1                       PROSPECTIVE JUROR 25:         Honestly, I

 2   probably have predispositions; but I respect the law.

 3   So I would do my best to follow the instructions of the

 4   judge.   I do have opinions.

 5                       My background being criminal, I

 6   understand the differences in the burdens of proof,

 7   punitive damages.     As mentioned before, that might be

 8   my -- for the individual, might be where I really have

 9   to adhere to the letter of the law and the judge's

10   instructions because I -- you know, my heart is already

11   sad for what happened.       But at the same time, that

12   punishment segment for the individual, knowing that it's

13   an incorporated -- knowing that it's a corporation, I

14   would definitely listen to the facts.            I would need the

15   facts, I'd need the patterns, I would need to know what

16   happened, how it happened, but I would do my best,

17   obviously, to follow the law.

18                       But as far as -- you know, when it

19   comes to punitive --

20                       MR. SPARKS:      You're struggling?

21                       PROSPECTIVE JUROR 25:         Through my

22   practice and my life, I try to be very fair and

23   reasonable; but I'm not going to deny that I'm

24   opinionated.

25                       I don't know that it would be a



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 1   struggle.     It's sort of a conflict, but I would defer to

 2   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,

 5   just raise your hand.

 6                          (Hands raised.)

 7                          MR. SPARKS:      All right.         And that's

 8   okay.    We don't -- we don't expect you guys to come in

 9   here and just leave your opinions and your life

10   experiences and your -- your -- your expertises at the

11   door.

12                          All we want you to do is say, based on

13   those relationships, would I be a fair person to sit on

14   this case, in this particular court, on this particular

15   day.

16                          And if you can be, we welcome you.               But

17   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

19   one for you because if your experiences would cause you

20   to lean for us, that would probably be unfair to them.

21   And if it would cause you to lean for them, certainly

22   that would be unfair for us, right?              All we want is

23   fairness.

24                          And what we're doing right now is

25   trying to figure out who could be and who couldn't be.



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 1                          THE COURT:     You have five minutes.

 2                          MR. SPARKS:      Thank you, Your Honor.

 3                          So having said all that, anybody here

 4   think this case wouldn't be good for them?                 Raise your

 5   hand.

 6                          (Hands raised.)

 7                          MR. SPARKS:      You don't think it would

 8   be a good one for you, sir?

 9                          PROSPECTIVE JUROR 12:         Yes, sir.        I'm

10   in a situation right now with my brother-in-law; he's in

11   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,

15   Mr. McCraw, is it?

16                          PROSPECTIVE JUROR MCCRAW:           I just think

17   I'm a little too bias -- I mean, honestly, I think I'm a

18   little too bias to even serve on a civil jury.

19                          MR. SPARKS:      Okay.

20                          PROSPECTIVE JUROR MCCRAW:           Criminal

21   courts, no problem; but I have a -- I'm predispositioned

22   to... just like the whole rigamarole with award, blame,

23   and --

24                          MR. SPARKS:      Okay.

25                          PROSPECTIVE JUROR MCCRAW:           -- you know,



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 1   I'm -- I could apply the reasonable doubt and the law,

 2   but the civil stuff really gets me going.

 3                       MR. SPARKS:      And you were shaking your

 4   head, Juror 25.    Is that how you feel, too?

 5                       PROSPECTIVE JUROR 25:         Because --

 6                       MR. SPARKS:      I just need a yes or no.

 7   I'm sorry.   I don't have a lot of time.           The judge has

 8   got me on a short leash right now.

 9                       PROSPECTIVE JUROR 25:         Yeah.     I'm

10   pulled because it's such a sad case and because my heart

11   breaks with the families.        But going after an

12   individual -- I'm stuck on the punitive.

13                       MR. SPARKS:      Okay.    Don't get stuck

14   there.   Okay.

15                       Anybody else?      We have Number --

16   Number 9?

17                       PROSPECTIVE JUROR 9:         9, yeah.

18                       Being -- I'm retired from the Houston

19   Fire Department now; but back then and seeing burnt

20   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

24   marshals, City of Houston.        And so I guess I have a lot

25   of questions to ask as far as, you know, codes and stuff



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 1   like that.

 2                         MR. SPARKS:      Yes, sir.

 3                         PROSPECTIVE JUROR 9:         And I just -- I

 4   would try to be as fair as I could be.              That's all I

 5   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

10   off, but I don't have all the names.

11                         UNIDENTIFIED PROSPECTIVE JUROR:             I

12   understand.

13                         THE COURT:     What's your Juror Number,

14   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

20   [sic] between corporate and an individual responsibility

21   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

25   Juror Number?



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 1                       PROSPECTIVE JUROR 21:         21.         I'd be very

 2   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

 6   to -- what would biases be, if I may ask?

 7                       PROSPECTIVE JUROR 21:         Just with the

 8   burn victims.

 9                       MR. SPARKS:      Okay.     Okay.

10                       Yes, ma'am.      Give me your number.            I

11   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,

18   ma'am.

19                       MR. SPARKS:      I like 29.         Go ahead.

20   Tell me your --

21                       PROSPECTIVE JUROR 36:         I guess my issue

22   is I'm a professor of business and I teach business

23   ethics, as well as management.           So I have very set --

24                       MR. SPARKS:      Yes, ma'am.

25                       PROSPECTIVE JUROR 36:         -- ideas on



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 1   things.

 2                          MR. SPARKS:      I didn't hear the last

 3   part.     I'm sorry.

 4                          PROSPECTIVE JUROR 36:         I just said, I

 5   teach business ethics and I teach management and I'm

 6   pretty bias --

 7                          MR. SPARKS:      Yes, ma'am.

 8                          PROSPECTIVE JUROR 36:         -- towards my --

 9   what I know.

10                          MR. SPARKS:      Well, being bias toward

11   what you know may not be bad.            What about being bias

12   towards one of us?

13                          PROSPECTIVE JUROR 36:         I'd probably be

14   bias toward the victim because I'm a firm believer in

15   corporate responsibility.           And it doesn't matter who did

16   the crime; you're still responsible as the CEO.

17                          MR. SPARKS:      Okay.    Thank you.

18                          UNIDENTIFIED PROSPECTIVE JUROR:           Same

19   bias.

20                          MR. SPARKS:      Same for you?

21                          Anybody else on that back row believes

22   like the professor?

23                          Yes, ma'am.      Tell me -- you're 29?

24                          PROSPECTIVE JUROR 29:         29.

25                          MR. SPARKS:      You're 29?



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 1                       PROSPECTIVE JUROR 29:         I'm 29.

 2                       MR. SPARKS:      You're 29.         Okay.    Ms. 29,

 3   how are you doing?

 4                       PROSPECTIVE JUROR 29:         I could be bias

 5   because I worked 13 years with special needs and

 6   handicapped children.

 7                       MR. SPARKS:      Yes, ma'am.         Okay.

 8                       Now, I thought I saw some folks that

 9   worked in physical therapy and stuff, a lot more so than

10   we normally get.     Raise your hands and give me your

11   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

22   [sic]?

23                       PROSPECTIVE JUROR BILLINGS:             Billings.

24                       MR. SPARKS:      Billings?      I'm sorry.

25                       PROSPECTIVE JUROR BILLINGS:             Yes, sir.



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 1                          MR. SPARKS:      Your relationship in

 2   physical therapy, would it cause you to bring one

 3   thought process versus another if you were to sit on

 4   this panel?

 5                          PROSPECTIVE JUROR BILLINGS:             I work

 6   with Alzheimer's patients, and so I possibly -- because

 7   I would fight for them.          And I think if I feel that they

 8   did something, I might be more swayed towards...

 9                          MR. SPARKS:      Well, let me ask you this

10   question:     Can you set aside your relationships with

11   your professional life to listen and make a

12   determination just based on the facts that are presented

13   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

20   much.

21                          THE COURT:     You need to wrap it up.

22                          MR. SPARKS:      All right.         Number 24,

23   your thoughts?

24                          PROSPECTIVE JUROR 24:         I do home

25   health; and I do occasionally see patients that are in,



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 1   like, group homes.        And I'm not sure I can --

 2                          MR. SPARKS:      You don't think you'd be a

 3   good juror on this panel based on that experience?

 4                          PROSPECTIVE JUROR 24:         Huh-uh.

 5                          MR. SPARKS:      All right.         Thank you very

 6   much.

 7                          The judge has reigned me in, ladies and

 8   gentlemen.      I really appreciate having this opportunity

 9   to speak with you.        I may not get another one as we go

10   throughout the trial, but we really appreciate you

11   coming down.      You do our system a great service, and we

12   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

17   gentlemen of the jury panel, I want to welcome you-all

18   here; and I thank you for the opportunity today to visit

19   with you, to talk about your feelings and attitudes

20   about this case.

21                          Your Honor, can we have the screen

22   down?

23                          THE COURT:     Yes.

24                          MR. PLUMMER:      Again, my name is

25   Jim Plummer.      I practice law here in Harris County.                 And



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 1   I'm going to give a little bit to you about this lawsuit

 2   and about the process and ask you some questions about

 3   your feelings about this process.          Okay?

 4                       First of all, Ms. Wagner here is the

 5   parent of Jenny Wagner and is here as the plaintiff in

 6   this lawsuit and -- along with Ms. Taylor here, who is

 7   the representative of her nephew, I believe, who was the

 8   son of Ms. James, who died in the fire.

 9                       I represent -- we represent Four J's

10   Community Living Center, which is a center -- part of a

11   center that provides a residential group home for folks

12   with various kinds of disabilities, mental retardation

13   and physical disabilities.

14                       Everybody understand that?

15                       They are regulated and governed by

16   various State agencies, and they are part of the DADS

17   program which is the -- I always forget -- it's the

18   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

23   Community Living Center is a lady by the name of

24   Anthonia Uduma.    Anybody know Ms. Uduma?

25                       (No response.)



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 1                       MR. PLUMMER:      Okay.    Before I go any

 2   further, let me tell you what my perfect jury would be:

 3   My perfect jury would be 12 guys who played on the

 4   basketball team with me in high school because I believe

 5   that they would respect me and respect what I do and

 6   respect my -- my client and decide issues in my favor.

 7   It's the perfect jury.

 8                       But un -- but fortunately, the process

 9   doesn't work that way.       The process requires that we get

10   12 of you citizens, ordinary citizens, who bring your

11   common sense and your own experience to bear, listen to

12   the evidence, and then decide based on that evidence and

13   the question that the Court's going to give you at the

14   end of this.

15                       Does everybody understand that's going

16   to be the role of the jurors in this matter?              Everybody

17   understand that?

18                       PROSPECTIVE JURORS:         (As a group)        Yes.

19                       MR. PLUMMER:      All right.        So I have to

20   ask you some questions to -- to judge and gauge your --

21   whether you're qualified or whether or not you're the

22   right person to sit on this jury.          Okay?

23                       The first thing -- let me have the

24   first slide, please.

25                       The first thing -- question I want to



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 1   ask everybody is:     Ms. Uduma is not present here now,

 2   and part of the reason she's not present here is I want

 3   candid responses from you-all without being influenced

 4   by who the -- the party is or the person is or how they

 5   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

 9   Ms. Uduma, if they were picked as a juror, if she is not

10   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

14   because of an absolute tragedy.          Nobody in his right

15   mind would think of this, the loss that was suffered, as

16   anything other than a tragedy; and I want to put that

17   tragedy in context.

18                       There was a group home on Beretta Court

19   in the southwest part of town that was owned by

20   Ms. Uduma but run by Four J's Community Living Center.

21   It -- it was a four-person home.          That meant that it

22   could have four residents there, each of whom was either

23   physically disabled or mentally retarded or had a

24   variety of disabilities.       Okay?

25                       The routine -- and Four J's provided



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 1   24-hour care.    That meant that they fixed meals for the

 2   clients or customers -- "clients," I think was the term

 3   they used, or "individuals" they used.            They fixed meals

 4   for them.    They took them to an activity center during

 5   the daytime where they had various kinds of therapy,

 6   they brought them home, and cooked dinner.

 7                       For those clients who needed the care

 8   of -- their personal care was taken care of, bathing and

 9   showering and things of that sort.           Dinner was made.

10                       They slept there, and the next day the

11   routine would -- would reoccur where they got some

12   activity.

13                       Now, there's a philosophical reason in

14   trying to integrate them -- these folks with

15   disabilities into the community as best you can, but

16   that's one of the reasons for the group home.

17                       On September 4, 2008, the routine

18   started.    They went to the activity center.           And at

19   about 4 or 5 o'clock, they come back to [sic] the

20   activity center to Beretta Court.          Dinner was done.        And

21   at some point in time in the evening, one of the

22   residents, one of the clients, Arzola -- Esperanza

23   Arzola, lit a match, lit a lighter that she had hidden

24   in her bra, in a bedroom and started a fire.

25                       That fire consumed the house over a



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 1   period of time.    At the time of that fire, the caregiver

 2   who was there was a lady by the name of Amuche Udemezue.

 3   Amuche Udemezue had been trained that when an emergency

 4   like a fire occurred, you get your weakest person out

 5   first, and you get those who are ambulatory, those who

 6   could walk on their own -- you shout to them and lead

 7   them out, but you want to get the weakest person out

 8   first.

 9                       Jenny Wagner was in that category.              She

10   couldn't walk.    She had cerebral palsy.          She was blind.

11   She needed to be carried out.

12                       And Udemezue, on that day, panicked,

13   didn't follow her training, and left two of the

14   residents in the house.       Jenny Wagner was burned

15   significantly.    Ms. James died.

16                       Now, that's a quick overview of what

17   happened that night.

18                       I need to ask each of you-all:           Is

19   there anybody here, just on those facts, just on those

20   facts, who would favor one side or the other in this

21   particular lawsuit if they served as a juror?

22                       UNIDENTIFIED PROSPECTIVE JUROR:           Can I

23   ask a question?

24                       MR. PLUMMER:      Yes, sir.

25                       UNIDENTIFIED PROSPECTIVE JUROR:           You



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 1   said there was four individuals, right?            They were

 2   handicapped, right?

 3                       MR. PLUMMER:      All of the residents, all

 4   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

 9   levels of disability.

10                       UNIDENTIFIED PROSPECTIVE JUROR:            Got

11   you there.

12                       MR. PLUMMER:      And then there was one

13   staff person who was there who spent the night.

14                       UNIDENTIFIED PROSPECTIVE JUROR:            Okay.

15                       MR. PLUMMER:      It was a 24-hour house;

16   so they provided 24-hour care.

17                       UNIDENTIFIED PROSPECTIVE JUROR:            I

18   guess my question is:      You had one staff person to take

19   care of all of them, right?

20                       MR. PLUMMER:      Correct.

21                       UNIDENTIFIED PROSPECTIVE JUROR:            Okay.

22                       MR. PLUMMER:      And that was within the

23   regulations at that time.        Okay?

24                       PROSPECTIVE JUROR 13:         Sir?

25                       MR. PLUMMER:      Yes, sir.



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 1                       PROSPECTIVE JUROR 13:         Number 13.

 2                       MR. PLUMMER:      Yes, sir.

 3                       PROSPECTIVE JUROR 13:         When you first

 4   started speaking, I believe you said that Ms. Uduma --

 5                       MR. PLUMMER:      Uduma.

 6                       PROSPECTIVE JUROR 13:         -- is the owner

 7   of the house --

 8                       MR. PLUMMER:      Correct.

 9                       PROSPECTIVE JUROR 13:         -- and Four J's

10   ran the service.

11                       MR. PLUMMER:      Correct.

12                       PROSPECTIVE JUROR 13:         Is she a part of

13   Four J's or has an interest it?

14                       MR. PLUMMER:      Yes.     She is the owner of

15   Four J's.

16                       PROSPECTIVE JUROR 13:         Okay.

17                       MR. PLUMMER:      And she also has the --

18   owns the house but leases it to Four J's.

19                       PROSPECTIVE JUROR 13:         Okay.

20                       MR. PLUMMER:      By the way, would that

21   create a problem for you?

22                       PROSPECTIVE JUROR 13:         No.     I just

23   wanted a clear understanding.

24                       MR. PLUMMER:      I'm sorry.        Yeah, that's

25   the relationship.



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 1                       PROSPECTIVE JUROR 13:         Okay.

 2                       MR. PLUMMER:      Okay?     Anybody else?

 3                       (Hands raised.)

 4                       MR. PLUMMER:      Yes, sir.

 5                       UNIDENTIFIED PROSPECTIVE JUROR:                   Were

 6   there smoke detectors in the home?

 7                       MR. PLUMMER:      There were smoke

 8   detectors, there was a smoke alarm, there was a fire

 9   extinguisher and train -- and Ms. Udemezue had been

10   trained and drilled on fire -- there were fire drills,

11   there was training, and each resident had a safety plan,

12   individual safety plan, where they talked about their

13   limitations, what needs to be done in an emergency --

14   like a hurricane, flooding, bad weather, fire.                   All

15   those things were in each resident's folder and were

16   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

20   bring to the Court's attention.

21                       THE COURT:     Mr. Thweatt?

22                       (Discussion at the bench without a

23   court reporter.)

24                       MR. PLUMMER:      Yes, sir.         Mr.     -- you

25   are Number 40?



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 1                       PROSPECTIVE JUROR 40:         Yeah.

 2                       MR. PLUMMER:      What is your name,

 3   please, sir?

 4                       PROSPECTIVE JUROR JONES:             Charles

 5   Jones.

 6                       MR. PLUMMER:      Mr. Jones, yes, sir.

 7                       PROSPECTIVE JUROR JONES:             Shouldn't it

 8   be more than one person at night to control the

 9   situation on the basis of it's at night?                Shouldn't it

10   be more than one people -- well, that many people to get

11   out of there if it's a fire hazard -- is one person

12   going to get all these people out if it's a fire?

13                       MR. PLUMMER:      That's a legitimate

14   question, and I think that's a legitimate inquiry.                   But

15   the regulations were such that it was determined that

16   one person, even under an emergency situation like a

17   fire, could get all four residents out safely.

18                       Now -- and let me add to that:             The

19   only one who couldn't ambulate by themselves was

20   Jenny Wagner.    Okay?

21                       And the drills that were done, the fire

22   drills that were done, showed that everybody could be

23   evacuated within two minutes or three minutes or

24   thereabouts.

25                       PROSPECTIVE JUROR JONES:             Well, that's



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 1   good during the daytime or at night or where people are

 2   sleeping or awakened to get out; or was it done when

 3   they was already awake?

 4                          MR. PLUMMER:      Legitimate question.            I

 5   think the evidence will show it was done at various

 6   times.

 7                          PROSPECTIVE JUROR JONES:            Okay.   But

 8   you didn't answer my question.

 9                          THE COURT:     I think the answer, sir,

10   right now is the members of the trial jury will have an

11   opportunity to observe the exhibits and listen to the

12   witnesses who are presented and will be able to evaluate

13   the facts based on the evidence presented.                 Right now

14   we're just in the process where we're talking about the

15   jurors' views on certain things.

16                          MR. PLUMMER:      Yes, ma'am.

17                          UNIDENTIFIED PROSPECTIVE JUROR:             I'm

18   not certain if this would bias me, but I don't think

19   that panic is an excuse for not following the rules.

20                          MR. PLUMMER:      And if -- I'm not

21   suggesting that it is, but I'm just trying to lay out

22   that -- that portion of the facts so that you understand

23   them.    Okay?

24                          UNIDENTIFIED PROSPECTIVE JUROR:             Okay.

25                          MR. PLUMMER:      Yes, ma'am.        You are



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 1   Ms. DeLeon?

 2                       PROSPECTIVE JUROR DELEON:           Yes.

 3                       How long had the attendant, the person

 4   that was in charge there that night -- how long had she

 5   been working for?

 6                       MR. PLUMMER:      She had been working

 7   there for about a year, year and a half, as best I can

 8   recall; but you-all will get those facts.

 9                       PROSPECTIVE JUROR DELEON:           Right.       I

10   didn't --

11                       MR. PLUMMER:      That's not a problem.

12                       The important thing I want to find out

13   from you-all is:     Just based on those facts -- tragic

14   accident, as -- as someone said, saddens my heart.

15   Based on just those facts, is there anybody here who

16   feels that the corporation or the owner of the house,

17   for that matter, ought to be responsible, is legally

18   liable?     And if so I need to know it.

19                       (Hands raised.)

20                       MR. PLUMMER:      Yes, ma'am.

21                       UNIDENTIFIED PROSPECTIVE JUROR:              I

22   believe they're liable.

23                       MR. PLUMMER:      Okay.    Number 34?

24                       UNIDENTIFIED PROSPECTIVE JUROR:              Hmm, I

25   think.



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 1                       UNIDENTIFIED PROSPECTIVE JUROR:              No,

 2   she's 36.

 3                       THE COURT:      She's 36, Mr.         Plummer.

 4                       PROSPECTIVE JUROR 36:         I'm 36.

 5                       MR. PLUMMER:      Okay.    Okay.       Anybody

 6   here who, in addition to -- is it Hilburn?

 7                       PROSPECTIVE JUROR HILBURN:             It is.

 8                       MR. PLUMMER:      Anybody here who -- on

 9   this side of the room (indicating) shares Mrs. Hilburn's

10   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. --

15   is that Mr. Keats, also?

16                       PROSPECTIVE JUROR KEATS:             Yeah.   I

17   believe they're liable.

18                       MR. PLUMMER:      Beg your pardon?

19                       PROSPECTIVE JUROR KEATS:             When you walk

20   on the premises, the people that own the premises are

21   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

25   entitled to that view.       You're entitled to that view.



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 1                          And so I want to know how many people

 2   feel like Mr. Hill and Mr. Keats and Mr. Dixon -- is it

 3   Mr. Dixon?

 4                          PROSPECTIVE JUROR DIXON:             Yeah.

 5                          MR. PLUMMER:      Okay.     On the first

 6   row -- anybody else on the first row feel like those

 7   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,

14   Pape.

15                          MR. PLUMMER:      Mr. Pape?

16                          PROSPECTIVE JUROR PAPE:             Yeah.

17                          MR. PLUMMER:      Anybody else other than

18   Mr. Pape on the second row?

19                          PROSPECTIVE JUROR TAFT:             I'm number 20,

20   Taft.

21                          I'm not sure -- I suspect that the

22   corporation -- I'm not sure.            Was there a criminal

23   proceeding of any sort?

24                          MR. PLUMMER:      Well, the person who

25   started the -- the fire, Esperanza Arzola, is no longer



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 1   in a group home setting.          I -- I probably -- I don't

 2   know if I can go any further than that at this point in

 3   time.

 4                          THE COURT:     Ladies and gentlemen, all

 5   relevant evidence -- all evidence that's relevant to the

 6   facts or issues that are raised by this lawsuit will be

 7   admitted during the course of this trial.

 8                          I realize a lot of you are curious

 9   about a lot of details, but those of you who become

10   members of the trial jury will have a chance to review

11   the evidence that's presented by the parties that's

12   relevant and admissible.

13                          So to the extent -- if you feel like

14   the lawyers aren't answering all your questions, just

15   understand that right now that's not really the point of

16   this part of the trial, about going into the specific

17   details of the case or the evidence that will be

18   presented.      We're here really to evaluate certain issues

19   surrounding jury selection.

20                          MR. PLUMMER:      Ms. Taft, thank you,

21   ma'am.

22                          Anybody else on the second row feel as

23   Mr. Dixon and Mr. Hill feel on the first row?

24                          (No response.)

25                          MR. PLUMMER:      And Mr. Pape.



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 1                          Third row?

 2                          UNIDENTIFIED PROSPECTIVE JUROR:             Your

 3   Honor --

 4                          MR. PLUMMER:      Mr. Jones, you feel the

 5   same way?

 6                          PROSPECTIVE JUROR JONES:            I do.

 7                          MR. PLUMMER:      The mere fact that it

 8   was -- the house was owned by Ms. Uduma and the company

 9   provided the group home services, they're responsible

10   regardless of what the law says?

11                          PROSPECTIVE JUROR JONES:            No, that's

12   not what I'm saying.

13                          MR. PLUMMER:      Okay.

14                          UNIDENTIFIED PROSPECTIVE JUROR:             That's

15   not what I said, either.

16                          MR. PLUMMER:      Okay.

17                          UNIDENTIFIED PROSPECTIVE JUROR:

18   Correct.

19                          UNIDENTIFIED PROSPECTIVE JUROR:             That's

20   not what I said, either.

21                          MR. PLUMMER:      Okay.

22                          UNIDENTIFIED PROSPECTIVE JUROR:             I --

23   well, let me --

24                          UNIDENTIFIED PROSPECTIVE JUROR:             Start

25   over.



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 1                       MR. PLUMMER:       I didn't intend to twist

 2   that around.

 3                       PROSPECTIVE JUROR HILL:             You sure did.

 4                       MR. PLUMMER:       Well, Mr. Hill, tell me

 5   what --

 6                       PROSPECTIVE JUROR HILL:             If I walk on

 7   your premises and it's your premises, it's a place of

 8   your business, you're going to keep it safe for me; and

 9   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

12   viewpoint?

13                       UNIDENTIFIED PROSPECTIVE JUROR:              Yes.

14                       MR. PLUMMER:       Pretty much Mr. Keys

15   [sic]; is that right?

16                       PROSPECTIVE JUROR KEATS:             Yeah.   I

17   mean, if you hold yourself out to be capable of taking

18   care of somebody, then I guess, if you don't, you have a

19   liability.

20                       MR. PLUMMER:       Okay.   Now, let me add

21   something to that.     There's going to be a dispute about

22   whether or not the care and training was reasonable

23   under the circumstances.       Okay?

24                       It's our view that the training and the

25   care was proper and reasonable except that, when a



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 1   crisis occurred, the employee who had been trained to

 2   act and protect these folks and get them out panicked

 3   and collapsed.    Okay?

 4                       You understand that?

 5                       Now, under that circumstance,

 6   Mr. Keats, would you feel that the company remains

 7   liable, regardless?

 8                       PROSPECTIVE JUROR KEATS:             No.   I -- I

 9   mean, I --

10                       MR. PLUMMER:      Mr. Dixon, do you feel

11   that way?    Mr. Hill?

12                       PROSPECTIVE JUROR HILL:             I do, yeah.

13                       MR. PLUMMER:      Mr. Keats?

14                       UNIDENTIFIED PROSPECTIVE JUROR:              You

15   put it that way --

16                       PROSPECTIVE JUROR KEATS:             You know, I'd

17   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

21   Mr. Tarr?

22                       PROSPECTIVE JUROR 21:         Correct.

23                       MR. PLUMMER:      All right.        Mr. Pape, how

24   do you feel about that?

25                       PROSPECTIVE JUROR PAPE:             And I agree.



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 1                       MR. PLUMMER:      Okay.    Ms. Tate -- yeah,

 2   Ms. Taft.

 3                       PROSPECTIVE JUROR TAFT:             Okay.     And I'm

 4   sorry?

 5                       MR. PLUMMER:      Reasonable precautions

 6   were made to protect against harm and injury by fire --

 7   training, alarm systems, things of that sort.

 8                       PROSPECTIVE JUROR TAFT:             Uh-huh.

 9                       MR. PLUMMER:      Okay?    But the -- but the

10   tragedy still occurred.       Okay?

11                       And one of the reasons the tragedy

12   occurred is that the person who had been trained to

13   address that issue panicked and -- and collapsed or

14   fainted or what have you.        Okay?

15                       Under those circumstances, is the owner

16   of the property or the company still responsible, in

17   your eyes, regardless?

18                       PROSPECTIVE JUROR TAFT:             I think quite

19   possibly, yes.

20                       MR. PLUMMER:      Okay.

21                       PROSPECTIVE JUROR TAFT:             And it depends

22   on all of the circumstances.

23                       MR. PLUMMER:      Okay.     I think it's --

24   you know, I -- we've had this 34 and 36 issue before.

25   You are Number 36 --



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 1                          PROSPECTIVE JUROR 36:         I think I'm 36.

 2                          MR. PLUMMER:      You're 36.         Okay.

 3                          And you are nodding your head,

 4   Ms. Hilburn; is that right?

 5                          PROSPECTIVE JUROR HILBURN:             Yeah.

 6                          MR. PLUMMER:      You're in agreement with

 7   that?

 8                          PROSPECTIVE JUROR HILBURN:             I would

 9   just probably agree that it's the corporation's

10   responsibility.

11                          MR. PLUMMER:      And would you say that,

12   from your perspective, Ms. Hilburn, that the corporation

13   guarantees that safety and, if something happens, the

14   corporation's responsible, regardless?

15                          PROSPECTIVE JUROR HILBURN:             Yes.

16                          MR. PLUMMER:      Okay.    Now, just in front

17   of you is a gentleman in the blue shirt.                   You were

18   nodding your head.

19                          You believe that the corporation

20   guarantees your safety?

21                          UNIDENTIFIED PROSPECTIVE JUROR:                Right.

22                          MR. PLUMMER:      Okay.     Tell me your name

23   again.

24                          PROSPECTIVE JUROR TARR:             Last name's

25   Tarr.



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 1                       MR. PLUMMER:      Tarr, Mr. Tarr.            Okay.

 2                       How many feel, on the first row, the

 3   same way Ms. Hilburn feels, on the first row?

 4                       (Hands raised.)

 5                       MR. PLUMMER:      And, Mr. Hill, you feel

 6   that way?

 7                       PROSPECTIVE JUROR HILL:             That a

 8   corporation's responsible, yes.

 9                       MR. PLUMMER:      They guarantee your

10   safety?

11                       PROSPECTIVE JUROR HILL:             I hope so.

12                       MR. PLUMMER:      Okay.

13                       UNIDENTIFIED PROSPECTIVE JUROR:                I'd

14   agree.

15                       MR. PLUMMER:      Mr. Dixon?

16                       PROSPECTIVE JUROR DIXON:             Well, I

17   don't -- I don't -- I can give a reason why I think they

18   should be responsible, but it would -- I mean, I think

19   they should be responsible.        I'm not going to say

20   guarantee your safety, but be responsible.

21                       MR. PLUMMER:      Well, they guarantee

22   nothing will happen to you.

23                       PROSPECTIVE JUROR DIXON:             No.     You

24   can't guarantee that.

25                       MR. PLUMMER:      Okay.    Mr. Keats?



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 1                          PROSPECTIVE JUROR KEATS:            You can't

 2   guarantee nothing's going to happen.

 3                          MR. PLUMMER:      Anybody else on the first

 4   row feel that way?        Anybody on the second row feel that

 5   they guarantee your safety?           Third row?      Ms. Jones,

 6   okay.

 7                          I have denied -- have not intended to

 8   ignore this side of the room.

 9                          UNIDENTIFIED PROSPECTIVE JUROR:            That's

10   okay.

11                          MR. PLUMMER:      And I think what I'm

12   going to try to do is to see if I can follow up on some

13   of the statements made on the other side of the room and

14   find out how you feel about those things.

15                          And I'm going to ask Mr. Jones and the

16   other gentleman who was a fire marshal to hold off for a

17   moment, and I'm going to ignore you-all for just a

18   moment.     Okay?

19                          UNIDENTIFIED PROSPECTIVE JUROR:            Okay.

20                          MR. PLUMMER:      Anybody on the first row

21   feel like Ms. Hilburn over here?

22                          (Hands raised.)

23                          MR. PLUMMER:      Yes, ma'am.

24                          UNIDENTIFIED PROSPECTIVE JUROR:            I feel

25   very strongly that corporations -- they set up their



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 1   policies and procedures to do all the right things.

 2   They should be held liable -- even if they've done the

 3   right things, they should be held liable.

 4                         MR. PLUMMER:      So they should be held

 5   liable, regardless?

 6                         UNIDENTIFIED PROSPECTIVE JUROR:           Right.

 7                         MR. PLUMMER:      Because the loss

 8   happened?

 9                         UNIDENTIFIED PROSPECTIVE JUROR:           Yes.

10                         MR. PLUMMER:      Now, the gentleman

11   sitting behind you with the cap on, your name, again,

12   sir?

13                         PROSPECTIVE JUROR OLIVER:           Oliver.

14                         MR. PLUMMER:      Mr. Oliver, what's your

15   number, please, sir.

16                         PROSPECTIVE JUROR OLIVER:           I think it's

17   30.

18                         MR. PLUMMER:      Okay.    Mr. Oliver, you

19   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

23   of the instructions the Court gives you, that's the way

24   you feel, and that's the way you're going to approach

25   this trial?



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 1                          PROSPECTIVE JUROR OLIVER:           Of course.

 2                          MR. PLUMMER:      Okay.     Now, sitting next

 3   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

 9   same way.

10                          MR. PLUMMER:      Okay.     First row, beyond

11   you, young lady, you two at the end; how do you-all feel

12   about that?

13                          UNIDENTIFIED PROSPECTIVE JUROR:              I

14   don't think that a corporation is necessarily liable for

15   the actions of its employees.            I mean, you set up, you

16   try and do things, an individual does something, that's

17   on the -- that's on the individual.              If you have the

18   policies in place, there's only so much you can do.

19                          If we get into the trial, then I'll

20   listen to the facts; and I'll make my decision based on

21   that.

22                          MR. PLUMMER:      Okay.    And you feel the

23   same way?

24                          UNIDENTIFIED PROSPECTIVE JUROR:              I

25   completely agree, yeah.



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 1                        MR. PLUMMER:      Okay.     You're a physical

 2   therapist, right?

 3                        UNIDENTIFIED PROSPECTIVE JUROR:           Yeah.

 4   PTA, Physical Therapist's Assistant.

 5                        MR. PLUMMER:      And you deal with

 6   Alzheimer's patients; is that correct?

 7                        UNIDENTIFIED PROSPECTIVE JUROR:           (Nods

 8   head.)

 9                        MR. PLUMMER:      Okay.     And you're trained

10   on how to deal with them in various contexts; is that

11   correct?

12                        UNIDENTIFIED PROSPECTIVE JUROR:           (Nods

13   head.)

14                        MR. PLUMMER:      Okay.     We'll come back to

15   that in a second, I think.

16                        Yes, sir.     You had your had your hand

17   up.

18                        UNIDENTIFIED PROSPECTIVE JUROR:           I do.

19   I agree with this gentleman.          I think -- my take on it

20   is that the company goes into their business with all

21   intentions of doing everything correct or making all the

22   reasonable efforts, then I'd have to hear the -- the

23   facts.

24                        MR. PLUMMER:      Okay.    Okay.    Second

25   row -- let's see.      You know, I -- this chart is -- it's



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 1   hard to keep track with this chart when you're standing

 2   up here and you-all are answering these questions for

 3   me.

 4                         Ms. Schuman?      And -- and the row that

 5   Ms. Schuman's on:       Any here feel, other than the two

 6   gentlemen on the end, the same way as the two gentlemen

 7   on the end?     That's a long question to say.

 8                         You feel -- it's a long question to

 9   say.    I've forgotten what the original question was, but

10   here it is:     Do you feel that the corporation's

11   responsible, regardless of what it did to prevent these

12   sorts of things, if this tragedy occurred?                Second row,

13   anybody feel that way?

14                         UNIDENTIFIED PROSPECTIVE JUROR:           I have

15   a question.

16                         MR. PLUMMER:      Yes, ma'am.

17                         UNIDENTIFIED PROSPECTIVE JUROR:           Didn't

18   you say that the law is not necessarily that way, or

19   that's not the --

20                         MR. PLUMMER:      Let me -- let me -- let

21   me correct -- let me correct that and say this -- this:

22   The judge is going to instruct you as to what the law

23   is.    And -- and briefly, the issue's going to be whether

24   or not there was negligence and the judge is going to

25   instruct you what negligence is and he's going to



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 1   instruct you on what proximate cause is.                   Okay?

 2                          And he's going to instruct you on the

 3   credibility of evidence and all those things, but the

 4   bottom line is:       People come in with preconceived

 5   notions.     And one of the preconceived notions, as we've

 6   already heard expressed -- and it's a legitimate notion.

 7   I'm not being critical of it -- is that some people

 8   feel -- and I need to know if you feel this way, that if

 9   it happened on my watch, I'm responsible regardless of

10   what I've done.       Understand?       Okay.

11                          So I need to know on the second row,

12   other than these two gentlemen down here, anybody feel

13   that way?

14                          (Hands raised.)

15                          MR. PLUMMER:      Yes, ma'am.

16                          PROSPECTIVE JUROR 32:         Based on what

17   I've heard so far, I believe that the -- the corporation

18   is responsible.

19                          MR. PLUMMER:      Okay.

20                          PROSPECTIVE JUROR 32:         Somebody has to

21   be --

22                          MR. PLUMMER:      Well --

23                          PROSPECTIVE JUROR 32:         -- based on the

24   information that I've heard so far.

25                          MR. PLUMMER:      Okay.     And you are Juror



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 1   Number?

 2                          PROSPECTIVE JUROR 32:         32.

 3                          MR. PLUMMER:      Last row, and I'm going

 4   to ask Judge Elrod if you'll -- you know, I don't need

 5   to ask you the -- the same questions -- same questions.

 6                          Anybody else feel that just because it

 7   happened on my watch, you've got to be responsible,

 8   legally responsible?         Anybody feel that way or the

 9   company is legally responsible?

10                          Now, I just heard Juror 32 say

11   something that I want to ask you-all -- the rest of

12   you-all about.

13                          Now, Ms. Napoli?

14                          PROSPECTIVE JUROR NAPOLI:           Napoli.

15                          MR. PLUMMER:      Ms. Napoli said,

16   somebody's got to be responsible.

17                          Question:     How many of you-all feel

18   that when a tragedy like this occurs, somebody is

19   legally responsible?

20                          UNIDENTIFIED PROSPECTIVE JUROR:              Oh,

21   yeah.

22                          MR. PLUMMER:      This side, first row,

23   Mr. Hill, Mr. Dixon, Ms. Keys -- Mr. Keats.                Yes, ma'am.

24   And this is Ms. DeLeon?

25                          PROSPECTIVE JUROR DELEON:           Right.



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 1                       MR. PLUMMER:      Okay.     Second row, how

 2   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

13   second row?

14                       And -- and that's regardless of what

15   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,

20   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

25   the last name.



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 1                       MR. PLUMMER:      Ms. Correa.        Yes, ma'am.

 2   Thank you.

 3                       Yes, sir, Mr. Keats.

 4                       PROSPECTIVE JUROR KEATS:            When you

 5   asked if somebody's responsible, does that include the

 6   person with the lighter?       Who are you talking about?

 7                       MR. PLUMMER:      Yes.

 8                       PROSPECTIVE JUROR KEATS:            Okay.     Then I

 9   would agree somebody's responsible, liable, too.                I

10   mean, you can sue the person with the lighter, but

11   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

16   the same old question, is the owner of the house and the

17   corporation, are they liable?         Is that really what

18   you're asking?

19                       MR. PLUMMER:      That's the question, yes.

20                       PROSPECTIVE JUROR KEATS:            That's really

21   what you're asking?

22                       MR. PLUMMER:      Yes.

23                       PROSPECTIVE JUROR KEATS:            They're

24   liable.   I don't know the extent to...

25                       UNIDENTIFIED PROSPECTIVE JUROR:               I



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 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

 4   believe that they've done nothing wrong, and they intend

 5   to vigorously defend themselves in this lawsuit.

 6                       And what I need to know is how many of

 7   you-all feel -- would hold that against Four J's

 8   Community Center and Ms. Uduma for vigorously seeking

 9   the truth and defending themselves in this lawsuit.                If

10   you would, raise your hand.

11                       (No response.)

12                       MR. PLUMMER:      Okay.    Let me -- I want

13   to gauge and get some information from you about some

14   other aspects of this matter.

15                       Second question I want to ask you-all

16   is do you, your spouse, or anyone in your life that

17   influences your decisions do any of the following:

18   Firefighter?

19                       Mr. Jones.

20                       And you are?

21                       PROSPECTIVE JUROR SCHROEDER:          Don

22   Schroeder, Number 9.

23                       MR. PLUMMER:      Mr. Schroeder.

24                       Yes, ma'am.      You're Juror Number 30 --

25                       PROSPECTIVE JUROR 47:         47.



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 1                       MR. PLUMMER:      47.

 2                       PROSPECTIVE JUROR 47:         My husband's a

 3   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

 8   Number 2, Mr. Atkins.      My wife's an attorney.

 9                       MR. PLUMMER:      Okay.    Number 1?

10                       PROSPECTIVE JUROR 1:         My

11   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

15   other people on this side of the aisle, on this side of

16   the aisle?

17                       (Hands raised.)

18                       MR. PLUMMER:      Yes, sir.

19                       PROSPECTIVE JUROR 30:         I used to be a

20   reservist in the state of Louisiana.

21                       MR. PLUMMER:      Okay.    All right.     And

22   you are number?

23                       PROSPECTIVE JUROR 30:         I'm 30.

24                       MR. PLUMMER:      Okay.    Yes, sir.

25                       UNIDENTIFIED PROSPECTIVE JUROR:           I have



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 1   one brother that's a doctor and another one that's a

 2   nurse.

 3                       MR. PLUMMER:      Okay.    All right.         All

 4   right.    Yes, ma'am.

 5                       PROSPECTIVE JUROR TAFT:             Brother that's

 6   a firefighter.

 7                       MR. PLUMMER:      Okay.     Here in Harris

 8   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

16   a doctor.

17                       MR. PLUMMER:      Okay.

18                       (Hands raised.)

19                       MR. PLUMMER:      Yes, sir.

20                       PROSPECTIVE JUROR 28:         My brother's an

21   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.



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 1                       MR. PLUMMER:      Mr. Farrell.      Okay.

 2                       UNIDENTIFIED PROSPECTIVE JUROR:             I have

 3   a question.

 4                       MR. PLUMMER:      Yes, ma'am.

 5                       UNIDENTIFIED PROSPECTIVE JUROR:             Do

 6   they need to be in this country?

 7                       MR. PLUMMER:      Not necessarily.       If they

 8   are -- if -- if they're in -- if their decisions

 9   influence your decision, your outlook --

10                       UNIDENTIFIED PROSPECTIVE JUROR:             You

11   mean, their opinion?

12                       MR. PLUMMER:      Their opinion, yeah, and

13   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

18   father-in-law's a firefighter and one of my professors

19   practices law formerly.

20                       MR. PLUMMER:      Okay.     Your

21   father-in-law's a firefighter in Harris County?

22                       UNIDENTIFIED PROSPECTIVE JUROR:             No.

23   He's actually a retired firefighter in Tarrant County.

24                       MR. PLUMMER:      Okay.     Anybody else on

25   this side?



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 1                       You can't -- you can't ignore and

 2   forget your experiences and relationships, but I need to

 3   ask the question anyway.

 4                       For those of you-all who've answered

 5   affirmatively to that question, can you set aside what

 6   you've been told and taught and heard and the tales

 7   you've been told and the tragedies you've been told

 8   about if you're selected as a juror in this case and

 9   decide the issues in this case solely based on the

10   evidence that comes from the stand and the exhibits and

11   documents that come into evidence?           Can each of you-all

12   do that?

13                       PROSPECTIVE JURORS:         (As a group)       Yes.

14                       MR. PLUMMER:      Okay.    Thank you.

15                       One of the things you-all -- all have

16   detected by now is that I go second.           The plaintiffs go

17   first, the intervenor goes first [sic], but Four J's

18   Community Center and Ms. Uduma go last.            That's the way

19   the system's structured.

20                       They put -- they -- they get a chance

21   to do opening statements first, they put on evidence

22   first, they do closing arguments first, and we go

23   second.

24                       What I want to find out from each of

25   you is that knowing that, would each of you reserve



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 1   making up your mind until you've heard all the evidence,

 2   not just who went first and who told the story the first

 3   time?     Can you do that?

 4                          PROSPECTIVE JURORS:         (As a group)       Yes.

 5                          MR. PLUMMER:      Okay.     Thank you.     Thank

 6   you.

 7                          I want to get a sense of one other

 8   thing about some of you-all, and I'm going to try to go

 9   down this fairly quickly.

10                          Can I see the next one?

11                          I want to get an idea who of you -- do

12   you-all watch or listen to any of the following programs

13   up there?       Well, you know, the first one is NPR.

14                          Anybody here watch NPR or listen to

15   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

20   is NPR?

21                          MR. PLUMMER:      National Public Radio.

22                          Number 8 -- if you would, as I come to

23   you, just call out your number.

24                          PROSPECTIVE JUROR 3:         3.

25                          MR. PLUMMER:      Number 3.



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 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

11   row?

12                         (No response.)

13                         MR. PLUMMER:      Third row?

14                         UNIDENTIFIED PROSPECTIVE JUROR:               Yeah,

15   just a question or just NPR --

16                         MR. PLUMMER:      NPR is the first one I'm

17   asking about.

18                         Okay.    Anybody else on the first row on

19   this side?

20                         (No response.)

21                         MR. PLUMMER:      Second row, Ms. Schuman,

22   Mr. Farrell.

23                         PROSPECTIVE JUROR 48:         Number 48.

24                         MR. PLUMMER:      Number 48.

25                         And -- and Ms. Elrod.         Okay.     All



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 1   right.

 2                       Bill Maher; how many of y'all watch

 3   Bill Maher?    Okay.

 4                       UNIDENTIFIED PROSPECTIVE JUROR:           I've

 5   seen it --

 6                       MR. PLUMMER:      Okay.

 7                       UNIDENTIFIED PROSPECTIVE JUROR:           -- on

 8   a regular basis.

 9                       MR. PLUMMER:      What about PBS TV?

10                       (Hands raised.)

11                       MR. PLUMMER:      Okay.     What about Oprah

12   Winfrey and Ellen DeGeneres; anybody watch those two

13   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

18   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

23   me start off by just getting numbers.            Number 1,

24   Number --

25                       PROSPECTIVE JUROR 3:         3.



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 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.

15   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

21   on what your number is yet?

22                       UNIDENTIFIED PROSPECTIVE JUROR:             Yeah.

23   She's 36.

24                       MR. PLUMMER:      She's 36.

25                       And 35.



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 1                       PROSPECTIVE JUROR 35:         I've only seen

 2   it on TV, what was on TV.

 3                       MR. PLUMMER:      I understand.        You have

 4   some familiarity with it.

 5                       UNIDENTIFIED PROSPECTIVE JUROR:            Just

 6   on TV.

 7                       MR. PLUMMER:      Okay.     And Mr. Jones?

 8                       PROSPECTIVE JUROR JONES:            Yes.

 9                       MR. PLUMMER:      Okay.     On this side

10   (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?



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 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

11   Jessica Tata case, is there anybody here who feels that

12   that would have an influence on how they looked at this

13   case and decided the issues in this case?               If so, would

14   you raise your hand?

15                       PROSPECTIVE JURORS:         (As a group) No.

16                       MR. PLUMMER:      Everybody understands

17   that that was a different set of circumstances,

18   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

22   to try to answer this question for me:            Well, I need to

23   know how you -- how you'd answer this question, whether

24   you strongly agree, agree, disagree, or strongly

25   disagree.   Okay?



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 1                       People of foreign origin are less

 2   trustworthy.

 3                       Number 1.

 4                       PROSPECTIVE JUROR 1:         Strongly

 5   disagree.

 6                       MR. PLUMMER:      Okay.    Number 2?

 7                       PROSPECTIVE JUROR 2:         Strongly

 8   disagree.

 9                       MR. PLUMMER:      Number 3?

10                       PROSPECTIVE JUROR 3:         Strongly

11   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,

21   disagree.

22                       MR. PLUMMER:      Okay.    Number 8?

23                       PROSPECTIVE JUROR 8:         Disagree.

24                       MR. PLUMMER:      Number 9?

25                       PROSPECTIVE JUROR 9:         Disagree,



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 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

 9   disagree.

10                          MR. PLUMMER:      Number 12?

11                          PROSPECTIVE JUROR 12:         Strongly

12   disagree.

13                          MR. PLUMMER:      Number 13?

14                          PROSPECTIVE JUROR 13:         Strongly

15   disagree.

16                          MR. PLUMMER:      14?

17                          PROSPECTIVE JUROR 14:         Strongly

18   disagree.

19                          MR. PLUMMER:      15?

20                          PROSPECTIVE JUROR 15:         Strongly

21   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
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 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

 8   disagree.

 9                       PROSPECTIVE JUROR 21:         I disagree.

10                       MR. PLUMMER:      20 -- 21?

11                       PROSPECTIVE JUROR 21:         21.      (No

12   answer.)

13                       MR. PLUMMER:      22?

14                       PROSPECTIVE JUROR 22:         Strongly

15   disagree.

16                       MR. PLUMMER:      23?

17                       PROSPECTIVE JUROR 23:         Disagree.

18                       MR. PLUMMER:      24?

19                       THE COURT:     Mr. Plummer, you need to

20   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
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 1   disagree.

 2                       MR. PLUMMER:      26?

 3                       PROSPECTIVE JUROR 26:         Strongly

 4   disagree.

 5                       MR. PLUMMER:      27?

 6                       PROSPECTIVE JUROR 27:         Strongly

 7   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,

18   disagree.

19                       MR. PLUMMER:      Okay.    33?

20                       PROSPECTIVE JUROR 33:         Strongly

21   disagree.

22                       MR. PLUMMER:      34?

23                       PROSPECTIVE JUROR 34:         Strongly

24   disagree.

25                       MR. PLUMMER:      35?



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000680
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 1                         PROSPECTIVE JUROR 35:         Strongly

 2   disagree.

 3                         MR. PLUMMER:      36?

 4                         PROSPECTIVE JUROR 36:         I have to ask a

 5   question.

 6                         MR. PLUMMER:      Yes, ma'am.

 7                         PROSPECTIVE JUROR 36:         Does it -- is

 8   that a general question or certain countries?

 9                         MR. PLUMMER:      Let me come back to that

10   one.

11                         PROSPECTIVE JUROR 36:         And I ask

12   that --

13                         MR. PLUMMER:      No, no.     That's a good

14   question.    That's a good question.           I'll come back to

15   that, but as a general proposition.

16                         PROSPECTIVE JUROR 36:         I disagree.

17                         MR. PLUMMER:      Okay.

18                         PROSPECTIVE JUROR 36:         Strongly

19   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

25   disagree.



            Cause No. 2009-40925, Wagner Vs. Four J's, et al   000681
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 1                       MR. PLUMMER:      39?

 2                       PROSPECTIVE JUROR 39:         Disagree.

 3                       MR. PLUMMER:      40?

 4                       PROSPECTIVE JUROR 40:         Strongly

 5   disagree.

 6                       MR. PLUMMER:      41?

 7                       PROSPECTIVE JUROR 41:         Strongly

 8   disagree.

 9                       MR. PLUMMER:      42?

10                       PROSPECTIVE JUROR 42:         Strongly

11   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

20   disagree.

21                       MR. PLUMMER:      47?

22                       PROSPECTIVE JUROR 47:         Strongly

23   disagree.

24                       MR. PLUMMER:      48?

25                       PROSPECTIVE JUROR 48:         Strongly



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 1   disagree.

 2                         MR. PLUMMER:      Now, let me answer

 3   Ms. Hilburn's question.         Let's suppose that the

 4   origin -- country of origin is Nigeria.              Anybody here --

 5   just raise your hand.        Well, I don't want to go through

 6   the numbers again; but anybody strongly feel one way or

 7   the other on either -- on that scale?

 8                         Ms. Hilburn?

 9                         PROSPECTIVE JUROR HILBURN:            I'm bias in

10   that way because they are rated as one of the most

11   unethical countries that conducts business in the world.

12   They're in the top five list.

13                         MR. PLUMMER:      Okay.     Anybody feel like

14   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

20   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

25   side, to my left?       Anybody feel that way?



            Cause No. 2009-40925, Wagner Vs. Four J's, et al     000683
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 1                         (Hands raised.)

 2                         MR. PLUMMER:      Yes, sir.

 3                         UNIDENTIFIED PROSPECTIVE JUROR:            I

 4   didn't hear.

 5                         MR. PLUMMER:      I'm sorry.        Ms. Hilburn

 6   said that she's bias against folks -- and correct me if

 7   I'm wrong -- from Nigeria because they have -- the

 8   country has a reputation as being the most unethical --

 9                         PROSPECTIVE JUROR HILBURN:            In the top

10   ten most unethical countries in the world.

11                         MR. PLUMMER:      In the top ten of the

12   most unethical countries in the world.              Do you feel that

13   way?

14                         UNIDENTIFIED PROSPECTIVE JUROR:            I

15   wouldn't jump to that conclusion and assume that.                     I

16   would look at the individual.

17                         MR. PLUMMER:      So you wouldn't feel --

18   you wouldn't feel strongly --

19                         UNIDENTIFIED PROSPECTIVE JUROR:            Just

20   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

23   question, because, I mean, it -- you would want to

24   disclose that if you were sitting in our shoes; is that

25   correct?



            Cause No. 2009-40925, Wagner Vs. Four J's, et al     000684
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 1                          UNIDENTIFIED PROSPECTIVE JUROR:           Yeah,

 2   but --

 3                          MR. PLUMMER:      Second row, anybody feel

 4   that way?

 5                          (No response.)

 6                          MR. PLUMMER:      Third row, anybody feel

 7   that way?

 8                          (No response.)

 9                          MR. PLUMMER:      Okay.    Thank you.

10                          THE COURT:     You have five minutes,

11   Mr. Plummer.

12                          Mr. PLUMMER:      Thank you, Your Honor.

13                          One more question, and I need to run

14   through the list.        Clients in a residential facility

15   should be bodily searched regularly to prevent harm to

16   others.     Agree, disagree, strongly, one way or the

17   other?

18                          PROSPECTIVE JUROR 1:         Depends on if the

19   individual requires them to be searched, if they're

20   known to be violent or they're known to -- yeah, if

21   they're known to be violent in any way.

22                          MR. PLUMMER:      Let me put it in another

23   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
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 1   for lighters when there's absolutely no indication in

 2   the past of any fire bug activity or things of that

 3   sort?

 4                          PROSPECTIVE JUROR 1:         Well, you just

 5   said that they have a history of --

 6                          MR. PLUMMER:      If they have no history.

 7                          PROSPECTIVE JUROR 1:         Oh, if they have

 8   no history.

 9                          MR. PLUMMER:      Right.

10                          Should they been strip-searched every

11   time they come in?

12                          PROSPECTIVE JUROR 1:         No.

13                          MR. PLUMMER:      Number 2?

14                          PROSPECTIVE JUROR 2:         Strongly

15   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
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 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

 9   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

24   disagree.

25                       MR. PLUMMER:      18?



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000687
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 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

 6   my father is in a residential facility and he does have

 7   to be checked every time he comes back in for lighters.

 8                       MR. PLUMMER:      Okay.    So you disagree

 9   but you --

10                       PROSPECTIVE JUROR 20:         I disagree,

11   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

16   on the facility.

17                       MR. PLUMMER:      Okay.    Group home,

18   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

25   number again?



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000688
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 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

13   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
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 1   question --

 2                        MR. PLUMMER:     Yes, ma'am.

 3                        PROSPECTIVE JUROR 34:        -- because I

 4   haven't formed my opinion yet.         You're saying clients in

 5   a residential facility, but you're not saying what

 6   clients in that residential facility.            So that will --

 7                        MR. PLUMMER:     I'm sorry.        I'm not

 8   saying what?

 9                        PROSPECTIVE JUROR 34:        Any client?

10                        MR. PLUMMER:     The people who live --

11   the clients who live in the home, the group home.

12                        PROSPECTIVE JUROR 34:        In the group

13   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

18   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 --

25   disagree.



          Cause No. 2009-40925, Wagner Vs. Four J's, et al     000690
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 1                       MR. PLUMMER:      38.

 2                       39?

 3                       PROSPECTIVE JUROR 39:         Agree.

 4                       MR. PLUMMER:      Mr. Jones?

 5                       PROSPECTIVE JUROR JONES:            Strongly

 6   agree.

 7                       MR. PLUMMER:      Okay.     41?

 8                       PROSPECTIVE JUROR 41:         Strongly

 9   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

20   depends on what the policies and procedures are and the

21   contracts and what the industry standard is, all of

22   those things which we do not yet know.

23                       MR. PLUMMER:      Okay.    So I can take that

24   as a pass on that question?

25                       PROSPECTIVE JUROR 46:         It's -- it



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 1   depends on persons more knowledgeable than me to know

 2   whether or not they should be strip-searched or not.

 3   And your question is strip-searched, but your question

 4   up there (indicating) says "bodily searched."

 5                       MR. PLUMMER:      I'm sorry.        I'm sorry.

 6                       PROSPECTIVE JUROR 46:         But anyway, I

 7   think it depends on what the industry standard is, what

 8   the agreement is of the parties.

 9                       MR. PLUMMER:      Let me add something to

10   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

12   to maintain the integrity of the clients, though they

13   have these disabilities; and that means that they have

14   rights, personal rights, due process rights, rights to

15   be free from confinement and things of that sort.

16                       PROSPECTIVE JUROR 46:         Right.

17                       MR. PLUMMER:      And we believe the rules

18   are you can't strip search them.          Okay?

19                       PROSPECTIVE JUROR 46:         Well, that's

20   what I expect the evidence to tell me at the trial --

21                       MR. PLUMMER:      Okay.

22                       PROSPECTIVE JUROR 46:         -- is that --

23   somebody would get up there and explain that this is

24   the -- to maintain their personal privacy, and you don't

25   give up your privacy rights and --



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 1                       MR. PLUMMER:      Correct.

 2                       PROSPECTIVE JUROR 46:         -- I expect

 3   there will be some witnesses, if I hear the trial.                 I

 4   don't want to predecide the issue.

 5                       MR. PLUMMER:      I appreciate that.

 6                       47?

 7                       PROSPECTIVE JUROR 47:         I'm going to

 8   abstain.

 9                       MR. PLUMMER:      Okay.

10                       48?   48?

11                       PROSPECTIVE JUROR 48:         Disagree.

12                       MR. PLUMMER:      Okay.    Ladies and

13   gentlemen --

14                       (Hands raised.)

15                       MR. PLUMMER:      Oh, yes, sir?

16                       UNIDENTIFIED PROSPECTIVE JUROR:           One

17   question:    When I look at this question, I'm thinking

18   more along the lines of a pat-down than I am a strip

19   searching.     If you're talking about a strip search, I

20   disagree.    But if you're talking about, like, a

21   pat-down, I can agree to that, because that's just --

22   you don't know the mental capability -- I don't know the

23   mental capabilities you're talking about here, but

24   you're talking about mentally-challenged people don't

25   necessarily know the dangers of what they've got ahold



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 1   of.     So I could agree to a pat-down.

 2                          MR. PLUMMER:      Okay.    As opposed to a

 3   strip search?

 4                          UNIDENTIFIED PROSPECTIVE JUROR:           Oh,

 5   yeah.

 6                          MR. PLUMMER:      And Number 34 agrees with

 7   you.

 8                          UNIDENTIFIED PROSPECTIVE JUROR:           A

 9   strip search I disagree with; but if it's just, like, a

10   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

14   your kindness.

15                          THE COURT:     Counsel, please approach

16   the bench.

17                          Okay.    Ladies and gentlemen, we're

18   going to take a break.          It's about the lunch hour.            And

19   sometimes these breaks take -- breaks take a little bit

20   longer than I planned for.           I really try and do that.

21                          But since it's about the lunch hour,

22   what we're going to do is we're going to take a longer

23   break so that y'all can go down, if you would like to,

24   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
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 1   hold back.      We're going to -- we have five of you that

 2   we need to talk to on a one-on-one basis.                  And so before

 3   y'all head for the elevators, wait for Deputy Dewey to

 4   come on out and let y'all know who needs to stick

 5   around.

 6                          You don't have to go to the cafeteria

 7   for lunch.      There are other eating establishments in the

 8   area; but I tell you what, it's going to be an awful lot

 9   easier on you if you go down there.              The line may be a

10   little long, but you won't have to re-enter through the

11   metal detectors to get back into the courthouse.                  All

12   you have to do is just go right out to the elevator.

13                          You are now in a different building

14   than you were in when you first reported for jury duty;

15   so you won't have to worry about trying to figure out

16   where you are downtown.          We've got a pretty good menu

17   down in the cafeteria.          I don't get any share of the

18   profits from the cafeteria; so I'm not steering you down

19   there to do anything like that.

20                          But we're going to take a break.                It's

21   just shy of 12 noon.         We're going to start back up at

22   1:15.     So those of you who are not sticking around, just

23   make sure you're back -- well, actually, everybody make

24   sure you're back at 1:15 up here in the court -- the

25   hallway outside the courtroom.            We're on the 13th floor



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 1   of the Harris County Civil Courthouse.

 2                          Again, Deputy Dewey will be out in the

 3   hallway here momentarily.           She can give you tips on

 4   that.     Thank you.

 5                          (Prospective Jury Panel exits the

 6   courtroom.)

 7                          THE COURT:     Thank you.      Please be

 8   seated.

 9                          All right.      I'll point out to y'all

10   that the quicker we get through this, the more time

11   you'll have for your lunch break.             So just keep that in

12   mind.

13                          (Prospective Juror Keats enters the

14   courtroom and takes the stand.)

15                          THE COURT:     Mr. Thweatt -- I'm sorry,

16   Mr. Terry.

17                          MR. TERRY:     Thank you, Your Honor.

18   Mr. Keats, when I was questioning you earlier about

19   holding an individual to a -- as -- comparing an

20   individual to a corporation and how you would kind of

21   rate the standard of proof or how much evidence I would

22   have to show in order to hold that individual liable

23   instead of the corporation, I believe your response was

24   that you were going to require a higher, I guess, burden

25   of proof from me as to the individual versus the



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 1   corporation.

 2                        PROSPECTIVE JUROR KEATS:            Yes, I would

 3   say so.

 4                        MR. TERRY:     Am I correct?

 5                        PROSPECTIVE JUROR KEATS:            I would say

 6   so.

 7                        MR. TERRY:     Okay.     No further

 8   questions, Your Honor.

 9                        THE COURT:     Mr. Sparks, do you have any

10   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

15   a question.    First of all, we didn't talk about it in

16   voir dire; but when we're talking about punitive

17   damages, we're actually talking about something called

18   exemplary damages.      That's the way the law talks about

19   it here in Texas.

20                        And the law for exemplary damages

21   requires that whoever the defendant is, liability and

22   the amount of exemplary damages must be proved not by a

23   preponderance of the evidence but by clear and

24   convincing evidence, which is a higher standard of proof

25   than preponderance of the evidence.



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 1                       Understanding that the law already

 2   requires a higher standard of proof for any defendant,

 3   whether they're an individual or a corporation, would

 4   that change your view or would you still require

 5   something higher than clear and convincing evidence for

 6   an individual as opposed to a corporation?

 7                       PROSPECTIVE JUROR KEATS:            No.   I --

 8   I -- clear and convincing evidence would be -- I mean,

 9   it's not, like, a death penalty case; but it could be

10   the economic death penalty for an individual and serious

11   consequences.

12                       I -- I -- if you can show that -- that

13   an individual is equally culpable or complicit in

14   allowing a situation to happen, I think they should be

15   responsible.

16                       But I -- you know, frankly, I just

17   don't trust the way courts have worked over the years;

18   and I think a lot of people have been unfairly targeted

19   and some companies have been unnecessarily plundered.                 I

20   don't say that as a bias against the court process or

21   anything else.    It's just that, I mean, there are --

22   people -- people are people.         They make mistakes, things

23   happen, and there's just no guarantees in life.               And you

24   can't always -- I mean, there's just not always a big

25   payday for every bad thing that happens, necessarily.



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 1                       I believe people should be punished for

 2   willful, obvious negligence that they could have

 3   prevented or for, you know, hiding behind a corporate

 4   veil to just extract money and hopefully, you know,

 5   ignore problems.     I mean, I -- it's hard -- you know, I

 6   don't know what to tell you.

 7                       I would try to do things as fairly, as

 8   I could; but I -- if you're giving me a blanket

 9   instruction and say that there's a liability here and I

10   know that, regardless of what I may have heard, I can

11   give a yes or no answer and if -- and if the -- if the

12   corporation gets hit, then we're going to go wipe out

13   this person and do I not -- do you not get a choice to

14   weigh those two scenarios, where maybe there is a

15   difference between the owner or the officer of the

16   company and what they knew or did and the company

17   itself?   I'm not sure...

18                       THE COURT:     Well, first of all, I'll

19   tell you something that you hear lawyers and judges say

20   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

22   and feelings.    What we do when we assess exemplary

23   damages, we look at each individual defendant who is

24   being accused of conduct that could open them up for

25   exemplary damages; and the jury is asked the question as



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 1   to each particular defendant, whether they should be

 2   found liable for exemplary damages by clear and

 3   convincing evidence.

 4                          PROSPECTIVE JUROR KEATS:            Okay.    You

 5   know, I would say, if you give me clear and convincing

 6   evidence, rather -- yes.          I mean, I've -- I've -- I

 7   would go with that.         I mean, it's not -- it's not all

 8   that iffy.      I'm not -- I don't have a prejudice to

 9   protect somebody any more than I do to hurt them.

10                          I just -- you know, give me the facts

11   and show me clear and convincing evidence.                 And if

12   exemplary damages are for punishment or for whatever,

13   okay.    I mean, if it's warranted, I don't have a

14   philosophical problem with that, with the wording

15   "punitive" or "exemplary damages."

16                          But, you know, I -- I just -- you can't

17   be frivolous about it, you know, or just assume that

18   there are always more deep pockets to pick because I

19   think that hurts the whole -- society.

20                          I mean, you just have to be careful

21   about how you, you know, award judgments and who you

22   blame and how much.         I don't take it lightly, but I -- I

23   can't give you a general answer other than a

24   preponderance of the evidence.            That doesn't mean that

25   I -- you know, that I absolutely would not, you know,



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 1   hold an individual liable.

 2                       THE COURT:     Well, like I said, for

 3   exemplary damages, the standard of proof is by clear and

 4   convincing evidence, not the lower preponderance of the

 5   evidence.

 6                       Mr. Terry, do you have --

 7                       PROSPECTIVE JUROR KEATS:            Yeah, I think

 8   I understand that, clear and convincing, yeah.

 9                       THE COURT:     Mr. Terry, do you have any

10   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

15   matter in which a jury will be asked to award damages,

16   if and so they find, do you think that this would be an

17   appropriate case for you to sit in, knowing that we're

18   looking at the company and the individual, based on

19   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

22   preconceived idea that, you know, well, somebody got

23   hurt and then we have to -- I mean, I'd have to listen

24   to both sides.     I don't know why I couldn't do that.

25                       I don't -- I'm not against awarding



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 1   damages, exemplary or whatever, when warranted.                  So

 2   yeah, I would say, yes.          I --

 3                          MR. SPARKS:      So based on the statements

 4   you made about deep pockets and things of that nature,

 5   do you think it would be inappropriate in a situation

 6   where someone was severely burned and someone died that

 7   going into a deep pocket would be appropriate?

 8                          PROSPECTIVE JUROR KEATS:            It might be

 9   appropriate.      Depends on who the deep pocket is.

10                          I mean, did they really have anything

11   to do with it?       I know that -- gosh, years ago I had a

12   friend during the great depression in the Eighties

13   staying at my house and she was a real estate broker, as

14   am I.    And a man with whom she was associated did

15   something unethical, and then a lawyer called me up and

16   he wanted to sue me due to some vicarious liability

17   theory because I was the deep pocket.

18                          It happened that my friend, who was

19   broke and living with me, didn't have any money.                  But

20   since I provided a place for this broker to live and

21   work, then, therefore, I was responsible for something

22   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

25   just aware that things like that can be construed to --



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 1   to confer liability upon people who are quite innocent.

 2   You know what I mean?

 3                       MR. SPARKS:      You made a statement,

 4   also, sir, did you not, about some problems in reference

 5   to the court system itself and -- and in reference to

 6   the possibility of awarding money judgments and things

 7   of that nature.

 8                       The question, once again, is:             Do you

 9   think this type of case is one that it might not be in

10   your best interest to sit in with your preconceived

11   ideas and notions?

12                       PROSPECTIVE JUROR KEATS:             No, huh-uh.

13   I would just say, in fairness to both sides, that I'm

14   not one to be easily manipulated.          I mean, you just have

15   to convince me with facts and rational arguments and not

16   emotional ones for me to make a decision.               That's all.

17                       I mean, I just want you to know who I

18   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

25   courtroom.)



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 1                       (Prospective Juror DeSoto enters the

 2   courtroom and takes the stand.)

 3                       THE COURT:     Ms. DeSoto, if you could

 4   have a seat right here in this chair next to me.               We've

 5   got a microphone, that way we make sure everyone hears

 6   what you tell us.     Thank you.

 7                       Mr. Terry?

 8                       MR. TERRY:     Ms. DeSoto, looking back at

 9   my notes -- and I didn't take very good notes, and

10   that's why I need to ask you a little bit more.

11                       I understand that Mr. Plummer's firm

12   represented your sister?

13                       PROSPECTIVE JUROR DESOTO:           Yes.

14                       MR. TERRY:     Okay.     And that was

15   about -- did you say ten --

16                       PROSPECTIVE JUROR DESOTO:           I think it

17   was about ten years ago.

18                       MR. TERRY:     Okay.     Do you know what

19   kind of action it was?

20                       PROSPECTIVE JUROR DESOTO:           Well, she

21   was involved in an accident.

22                       MR. TERRY:     Okay.     Personal injury?

23                       PROSPECTIVE JUROR DESOTO:           Uh-huh,

24   personal injury.

25                       MR. TERRY:     Okay.     Did you have any



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 1   interaction with Mr. Plummer's firm during that time?

 2                          PROSPECTIVE JUROR DESOTO:           I think I

 3   might have met him at one time at his office because we

 4   went over there, but it wasn't more than just the one

 5   time.

 6                          MR. TERRY:     Were you a witness or

 7   anything like that to the case?

 8                          PROSPECTIVE JUROR DESOTO:           No, I

 9   wasn't.

10                          MR. TERRY:     Okay.     Just again, the fact

11   that your sister was represented by Mr. Plummer, would

12   that in any way affect your testimony [sic] in regards

13   to the case today -- in other words, that this might not

14   be the case for you because of that connection -- or

15   would you be able to come in and see the facts as they

16   are?

17                          PROSPECTIVE JUROR DESOTO:           I'm really

18   not sure.     I can --

19                          MR. TERRY:     So you have a --

20                          PROSPECTIVE JUROR DESOTO:           Yeah.      I

21   mean, I think -- well, it has nothing to do personally

22   because -- I mean, she didn't get anything out of it.

23   Her leg was amputated.          She didn't get awarded for her

24   pain and suffering.

25                          MR. TERRY:     Okay.



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 1                          PROSPECTIVE JUROR DESOTO:           So I don't

 2   know.

 3                          MR. TERRY:     So that might, I guess,

 4   affect your judgment in this case or bias --

 5                          PROSPECTIVE JUROR DESOTO:           Yeah.

 6                          MR. TERRY:     -- as to one side or the

 7   other?

 8                          PROSPECTIVE JUROR DESOTO:           I think so.

 9                          MR. TERRY:     No further questions, Your

10   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

15   would, that bias would be toward Mr. Plummer; is that

16   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

24   you.

25                          (Prospective Juror DeSoto exits the



             Cause No. 2009-40925, Wagner Vs. Four J's, et al    000706
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 1   courtroom.)

 2                       (Prospective Juror Schroeder enters the

 3   courtroom and takes the stand.)

 4                       THE COURT:     Mr. Schroeder, if you could

 5   come up here and have a seat in the chair next to me.

 6   We've got a microphone.       That way everyone hears what

 7   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

15   fireman?

16                       PROSPECTIVE JUROR SCHROEDER:          Well, I'm

17   retired now, yes, sir.

18                       MR. PLUMMER:      Once a fireman, always a

19   fireman?

20                       PROSPECTIVE JUROR SCHROEDER:          Yes, sir.

21   That's true.

22                       MR. PLUMMER:      And you understand that

23   there are going to be -- you're going to hear evidence

24   here in the courtroom and documents and things of that

25   sort and testimony, and then when you go back to the



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 1   jury room, if you're one of the jurors who deliberate,

 2   people may turn to you because of your expertise.

 3                          PROSPECTIVE JUROR SCHROEDER:           Yes, sir.

 4                          MR. PLUMMER:      You were a fire

 5   marshal --

 6                          PROSPECTIVE JUROR SCHROEDER:          I

 7   understand, yes, sir.

 8                          MR. PLUMMER:      Yes.    You fought the

 9   suppression?

10                          PROSPECTIVE JUROR SCHROEDER:          I

11   understand.      Yes, sir.

12                          MR. PLUMMER:      And you can't -- I can't

13   ask you to forget your common sense.

14                          PROSPECTIVE JUROR SCHROEDER:           Yes, sir.

15                          MR. PLUMMER:      But -- but, you know, one

16   of the concerns I have is that if you go back there, you

17   will use your expertise when you're not on the stand and

18   I can't cross-exam you and ask you a question about

19   that.

20                          PROSPECTIVE JUROR SCHROEDER:          Right.

21   Yes, sir.

22                          MR. PLUMMER:      Can you make that

23   separation?

24                          PROSPECTIVE JUROR SCHROEDER:          I would

25   to the best of my ability.



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 1                       MR. PLUMMER:      Okay.     But people are

 2   going to ask you questions.

 3                       PROSPECTIVE JUROR SCHROEDER:          Right.

 4                       MR. PLUMMER:      Okay.    Well, let me add

 5   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

10   he was chief for a good while and on the force for a

11   while.

12                       PROSPECTIVE JUROR SCHROEDER:          Right.

13                       MR. PLUMMER:      And because you know him,

14   he's got credibility with you.         He's like my basketball

15   team analogy that I used earlier.

16                       PROSPECTIVE JUROR SCHROEDER:          Right.

17                       MR. PLUMMER:      Are you inclined to

18   believe Chief Corral, regardless of what the

19   cross-examination is or the scrutiny is made of his

20   opinions?

21                       PROSPECTIVE JUROR SCHROEDER:           No.     I

22   wouldn't -- I mean, I'd have to look at it myself.

23                       MR. PLUMMER:      Okay.     Okay.

24                       PROSPECTIVE JUROR SCHROEDER:          I mean, I

25   trust in Chief Corral and what he says and stuff; but



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 1   he's not 100 percent right all the time, either.

 2                          MR. PLUMMER:      Okay.

 3                          PROSPECTIVE JUROR SCHROEDER:             Just like

 4   me or whoever.

 5                          MR. PLUMMER:      One of the things nobody

 6   talked about in voir dire is the notion of proximate

 7   cause.    Okay?     The legal causation for a particular

 8   event.    Okay?

 9                          Are you familiar with that expression

10   by any chance, "proximate cause"?

11                          PROSPECTIVE JUROR SCHROEDER:             A little

12   bit, yes, sir.

13                          MR. PLUMMER:      Have you ever been

14   involved in lawsuits before?

15                          PROSPECTIVE JUROR SCHROEDER:             No.     I --

16   yeah.    I was on a jury.        Is that what you mean?

17                          MR. PLUMMER:      Well, no.         As a litigant.

18                          PROSPECTIVE JUROR SCHROEDER:             No.

19   Nobody's ever -- God, no.

20                          MR. PLUMMER:      You haven't sued anybody?

21                          PROSPECTIVE JUROR SCHROEDER:             No.     Oh,

22   no.

23                          MR. PLUMMER:      Okay.     Well, what I'm

24   worried about, an undisclosed expert being in the jury

25   room.



             Cause No. 2009-40925, Wagner Vs. Four J's, et al      000710
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 1                        PROSPECTIVE JUROR SCHROEDER:          Yes, sir.

 2   That's understandable.

 3                        MR. PLUMMER:      Should I be worried about

 4   it?

 5                        PROSPECTIVE JUROR SCHROEDER:          Now, if

 6   they ask my opinion, I'm going to give them my opinion.

 7                        MR. PLUMMER:      Well, your opinion is an

 8   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

13   there's certain things that was not brought out and

14   there are certain things that were brought out that I

15   don't see eye to eye and -- I know state regulations and

16   I know the only way to change those is you've got to

17   have major catastrophes to change them.

18                        MR. PLUMMER:      Correct.     Correct.

19                        PROSPECTIVE JUROR SCHROEDER:          And my

20   biggest thing --

21                        MR. PLUMMER:      Let me give you a simple

22   example.

23                        PROSPECTIVE JUROR SCHROEDER:          Okay.

24                        MR. PLUMMER:      One argument may be that

25   the house should have had sprinklers.             They ain't



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 1   required for a four-bedroom home.

 2                       PROSPECTIVE JUROR SCHROEDER:           Right.

 3                       MR. PLUMMER:      And the house could be

 4   safe without them; but you may feel the house needed to

 5   have sprinklers, based on your experience.

 6                       PROSPECTIVE JUROR SCHROEDER:          Right.

 7                       MR. PLUMMER:      Do I have to worry about

 8   you going back there, giving your opinion in that

 9   regard?   And you can be honest with me.

10                       PROSPECTIVE JUROR SCHROEDER:          I would

11   say yes, because, I mean, I would think they would -- in

12   a situation, if you just had a house that had four

13   individuals, they were just -- let's use my

14   father-in-law right now.

15                       He just got through with surgery, so

16   he's in a rehabilitation place.

17                       MR. PLUMMER:      Right.

18                       PROSPECTIVE JUROR SCHROEDER:          And I

19   would not have to worry about him because he still can

20   get around and stuff.      But in a situation like what you

21   were talking about earlier with --

22                       MR. PLUMMER:      Ms. Wagner, she couldn't

23   get around.

24                       PROSPECTIVE JUROR SCHROEDER:          Right.

25   And seeing what I've seen in the past and just with that



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 1   one lady there with -- I assume it was still four people

 2   that were there?

 3                       MR. PLUMMER:      Uh-huh.

 4                       PROSPECTIVE JUROR SCHROEDER:          I just

 5   can't agree with that --

 6                       MR. PLUMMER:      Okay.

 7                       PROSPECTIVE JUROR SCHROEDER:

 8   -- because of the situations, not knowing, basically

 9   the -- the health of the lady that was supposed to get

10   them all out.    I couldn't -- in other words, I couldn't

11   just say it was all her fault.

12                       MR. PLUMMER:      Okay.

13                       PROSPECTIVE JUROR SCHROEDER:          There's

14   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

21   background --

22                       PROSPECTIVE JUROR SCHROEDER:           Yes, sir.

23                       MR. TERRY:     -- I guess -- and correct

24   me if I'm wrong, but what you were just trying to say

25   was you have to look and wait and see all the facts that



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 1   are going to be presented today before you make a

 2   decision on anything.

 3                          PROSPECTIVE JUROR SCHROEDER:          That's

 4   true.

 5                          MR. TERRY:     And you will follow the law

 6   given to you by the judge, despite what biases you bring

 7   in?

 8                          PROSPECTIVE JUROR SCHROEDER:          That is

 9   true.

10                          MR. TERRY:     No further questions, Your

11   Honor.

12                          THE COURT:     Mr. Sparks?

13                          MR. SPARKS:      Briefly.

14                          Mr. Schroeder, the bottom line is you

15   could be fair, could you not?

16                          PROSPECTIVE JUROR SCHROEDER:          I could

17   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

22   courtroom.)

23                          (Prospective Juror Rodriguez enters the

24   courtroom and takes the stand.)

25                          THE COURT:     Ms. Rodriguez, if you could



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 1   come forward and have a seat in the chair right next to

 2   me.    We've got a microphone there.           That way everyone

 3   can hear what you have to say.

 4                         Mr. Terry?

 5                         MR. TERRY:     Ms. Rodriguez, looking back

 6   at my notes, I see -- I remember that Mr. Plummer had

 7   represented you in the past, correct?

 8                         PROSPECTIVE JUROR RODRIGUEZ:          Uh-huh.

 9   Yes.

10                         MR. TERRY:     Okay.      And it was in

11   regards to a business deal or some sort of business

12   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

20   building.

21                         MR. TERRY:     Okay.      And what happened?

22                         PROSPECTIVE JUROR RODRIGUEZ:          Well, we

23   had some people working, doing work for this company.

24   We sent the guys over there, and a fire occurred.

25                         MR. TERRY:     Okay.



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 1                       PROSPECTIVE JUROR RODRIGUEZ:           But, you

 2   know, we don't think it was our fault, the guy's fault,

 3   you know; but, you know, we left it in his hands and he

 4   took care of it.

 5                       MR. TERRY:     Okay.     So basically someone

 6   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

11   started it?

12                       PROSPECTIVE JUROR RODRIGUEZ:           Yes, yes.

13                       MR. TERRY:      Got you.

14                       Based upon Mr. Plummer's representation

15   of you in that case --

16                       PROSPECTIVE JUROR RODRIGUEZ:          Uh-huh.

17                       MR. TERRY:     -- would you come into the

18   courtroom today with a bias more towards Mr. Plummer

19   because he helped you out in that situation, versus

20   being able to listen to the facts and judge it on that

21   basis?

22                       PROSPECTIVE JUROR RODRIGUEZ:           No.     I --

23   I wouldn't.   I would see both sides, you know; and then

24   I would go from there.       Then I would decide, you know.

25   I wouldn't -- I would be fair, you know.



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 1                       MR. TERRY:     Okay.     No further

 2   questions, Your Honor.

 3                       THE COURT:     Mr. Sparks?

 4                       MR. SPARKS:      Yes, sir.

 5                       Ms. Rodriguez, when I spoke to you

 6   earlier, I was under the impression, when you were

 7   sitting out here, that you stated, having a relationship

 8   with Mr. Plummer, you didn't think it would be in your

 9   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

17   knew Mr. Plummer and he had been your attorney, when I

18   got up and I started asking about the people who said

19   they knew some of the people --

20                       PROSPECTIVE JUROR RODRIGUEZ:          Yes.

21                       MR. SPARKS:      -- you indicated that --

22   in my opinion, that you thought that in this particular

23   case, since he had previously represented you, you would

24   not be a good juror in this particular case.

25                       PROSPECTIVE JUROR RODRIGUEZ:           I didn't



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 1   say I wasn't a good juror.           You know, I -- maybe -- you

 2   know, the way I said it --

 3                          MR. SPARKS:      Not in terms of good,

 4   meaning the quality of your person, but maybe based upon

 5   having a prior relationship may give you a

 6   predisposition toward a person who was previously

 7   representing you, particularly in a case involving a

 8   fire.

 9                          PROSPECTIVE JUROR RODRIGUEZ:           Uh-huh.

10   Well, you know, like I said, it's just -- you know, I

11   have to see both sides, you know, to --

12                          MR. SPARKS:      Yeah.    Yes, ma'am.

13                          PROSPECTIVE JUROR RODRIGUEZ:          -- I

14   mean, to -- to say my -- you know, my opinion.

15                          MR. SPARKS:      But can I ask you this

16   question?

17                          PROSPECTIVE JUROR RODRIGUEZ:          Yes.

18                          MR. SPARKS:      Having seen both sides, if

19   you had to make a decision one way or the other with the

20   fact that maybe, if you needed him again, if you ruled

21   against him, your fees would go up or anything like

22   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



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 1   ruled against him in this particular case that he may

 2   not want to represent you again in the future if you

 3   needed him again?

 4                         PROSPECTIVE JUROR RODRIGUEZ:           No.     I

 5   wouldn't think so because he's very professional.

 6                         MR. SPARKS:      So with that in mind, you

 7   think that if you were selected on this jury, him having

 8   previously represented you, we wouldn't be at a

 9   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

13   disadvantage, if you sat on this jury, having had a

14   prevent relationship with Mr. Plummer?

15                         PROSPECTIVE JUROR RODRIGUEZ:          No.

16   If -- if it was just another lawyer, I would be -- I

17   would feel the same thing.

18                         MR. SPARKS:      No unusual allegiances to

19   him.

20                         PROSPECTIVE JUROR RODRIGUEZ:           No.     It's

21   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.



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 1                       (Prospective Juror Rodriguez leaves the

 2   courtroom.)

 3                       (Prospective Juror Jones enters the

 4   courtroom and takes the stand.)

 5                       THE COURT:     Mr. Jones, if you could

 6   come forward and have a seat in this chair next to me.

 7   We've got a microphone right there.           That way everyone

 8   can hear what you have to say.         I know you've got a

 9   booming voice.    That way we can make sure --

10   Mr. Plummer.

11                       MR. PLUMMER:      Thank you, Your Honor.

12                       Mr. Jones, you're with the fire

13   service?

14                       PROSPECTIVE JUROR JONES:            The City of

15   Houston Code Enforcement.

16                       MR. PLUMMER:      I'm sorry.        Code

17   Enforcement?

18                       PROSPECTIVE JUROR JONES:            Uh-huh.

19                       MR. PLUMMER:      And I think you said, did

20   you not, that you were a fire marshal?

21                       PROSPECTIVE JUROR JONES:            Well, I'm on

22   call exactly this week for -- whenever there's a big

23   fire, I've got to go out and -- you know, be the first

24   one out with the firemen.

25                       MR. PLUMMER:      So after the suppression



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 1   guys leave, you go in?

 2                       PROSPECTIVE JUROR JONES:            Correct.

 3                       MR. PLUMMER:      Do you investigate or do

 4   you --

 5                       PROSPECTIVE JUROR JONES:            Make sure

 6   it's safe --

 7                       MR. PLUMMER:      Okay.

 8                       PROSPECTIVE JUROR JONES:            -- for

 9   anybody else to come in.

10                       MR. PLUMMER:      Okay.    That's -- so -- so

11   if it's -- if the buildings's a dangerous building after

12   the fire --

13                       PROSPECTIVE JUROR JONES:            Yeah.

14                       MR. PLUMMER:      -- you red tag it?

15                       PROSPECTIVE JUROR JONES:            Yes.     And I'm

16   the one that says either you have to tear it down or

17   fence it.

18                       MR. PLUMMER:      Okay.     Now, before that,

19   your background was as a fireman?

20                       PROSPECTIVE JUROR JONES:            No.     Code

21   Enforcement.

22                       MR. PLUMMER:      Code Enforcement?

23                       PROSPECTIVE JUROR JONES:            Inspector.

24                       MR. PLUMMER:      Okay.     I'm sorry.        I was

25   confused.



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 1                       Now, I believe you said -- your

 2   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

 6   permits.   You have to go through -- if you want any

 7   permits or anything with the City, or plans, you've got

 8   to go through her department.

 9                       MR. PLUMMER:      Okay.    You -- if -- if --

10   it's fair to say that you have this specialized

11   knowledge through your employment --

12                       PROSPECTIVE JUROR JONES:            Uh-huh.

13                       MR. PLUMMER:      -- about codes and about

14   requirements for buildings, multifamily buildings and

15   things of that sort?

16                       PROSPECTIVE JUROR JONES:            Correct.

17                       MR. PLUMMER:      What I'm concerned about

18   is that when we have experts give reports and testify, I

19   can cross-examine them.

20                       PROSPECTIVE JUROR JONES:            Uh-huh.

21                       MR. PLUMMER:      But if you serve on the

22   jury and go back there to deliberate, based on the

23   testimony, you would end up being a secret expert that I

24   wouldn't have a chance to talk to about your opinions

25   before you do that.



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 1                          PROSPECTIVE JUROR JONES:            Correct.

 2                          MR. PLUMMER:      Do I have a reason to be

 3   concerned about that because you know all -- what you

 4   know?

 5                          PROSPECTIVE JUROR JONES:            Well, for

 6   this trial you have a reason to be concerned because I

 7   have issues right now with my brother-in-law that's in a

 8   facility --

 9                          MR. PLUMMER:      Okay.

10                          PROSPECTIVE JUROR JONES:            -- that

11   have -- has some issues that --

12                          MR. PLUMMER:      About how they're taking

13   care of him?

14                          PROSPECTIVE JUROR JONES:            Yes, yes.

15                          MR. PLUMMER:      Okay.

16                          PROSPECTIVE JUROR JONES:            And I'm, more

17   or less, bias to that --

18                          MR. PLUMMER:      Okay.

19                          PROSPECTIVE JUROR JONES:            -- because of

20   those -- negligence.

21                          MR. PLUMMER:      Okay.

22                          PROSPECTIVE JUROR JONES:            Uh-huh.

23                          MR. PLUMMER:      So as we start this trial

24   off --

25                          PROSPECTIVE JUROR JONES:            Uh-huh.



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 1                       MR. PLUMMER:      -- we're behind the eight

 2   ball, from your standpoint; is that right?

 3                       PROSPECTIVE JUROR JONES:            Okay.     Yes.

 4                       MR. PLUMMER:      Okay.     Thank you, sir.          I

 5   appreciate your candor.

 6                       THE COURT:     Hold on a second.

 7                       Mr. Terry?

 8                       MR. TERRY:     Mr. Jones, you understand

 9   that the defendant we're dealing with in this matter is

10   obviously totally separate from --

11                       PROSPECTIVE JUROR JONES:            Correct.

12                       MR. TERRY:     -- the entity in which your

13   brother-in-law is staying; is that correct?

14                       PROSPECTIVE JUROR JONES:            Uh-huh.

15                       MR. TERRY:     Okay.      So, you know, what

16   might be -- whatever they were doing that you don't see

17   as right with your brother-in-law obviously, you know,

18   might not be the fact with the defendant we're dealing

19   with in this case?

20                       PROSPECTIVE JUROR JONES:            Correct.

21                       MR. TERRY:     You understand they're

22   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
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 1   listen to the facts as they're presented by the evidence

 2   that comes from the stand and make your -- make a

 3   decision as regards to what you hear instead of what's

 4   happening to your brother-in-law?             Would you be able to

 5   do that?

 6                          PROSPECTIVE JUROR JONES:            It would be

 7   hard.    It would be hard.

 8                          MR. TERRY:     I understand it might be

 9   hard.

10                          PROSPECTIVE JUROR JONES:            Yeah.

11                          MR. TERRY:     I mean, there's going to be

12   a lot of hard decisions to be made during this trial.

13                          But would you be able to listen to the

14   evidence and make your decision based on that evidence

15   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,

18   it's just a situation now that when -- let me give you

19   this -- what's happening:           The facility -- he had an

20   infection on his toes.          The doctor had to cut them off.

21   Six months later, infection up his leg, had to cut off

22   up to his knee.

23                          And right now, between my wife and

24   myself, we're going through some changes.                  I don't know

25   if I could be fair to either side right now, going



             Cause No. 2009-40925, Wagner Vs. Four J's, et al     000725
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 1   through what I'm going through right now.

 2                       MR. TERRY:     Okay.     So I guess you're

 3   not fair to either side, meaning -- I mean, you have

 4   biases on both sides?

 5                       PROSPECTIVE JUROR JONES:            Right, right

 6   now, because --

 7                       MR. TERRY:     So it's not just you're

 8   behind the eight ball as far as the defendants; as far

 9   as the plaintiff, we're behind the eight ball, as well?

10                       PROSPECTIVE JUROR JONES:            Yeah,

11   correct, both sides.

12                       MR. TERRY:     No further questions, Your

13   Honor.

14                       THE COURT:     Mr. Sparks?

15                       MR. SPARKS:      Yeah.

16                       Mr. Jones, the concerns you have about

17   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

22   lends towards individuals having to have amputations?

23                       PROSPECTIVE JUROR JONES:            Correct.

24                       MR. SPARKS:      Certainly no situation

25   with there being a fire at the facility, to your



          Cause No. 2009-40925, Wagner Vs. Four J's, et al     000726
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 1   knowledge?

 2                          PROSPECTIVE JUROR JONES:            No fire,

 3   that's correct.

 4                          MR. SPARKS:      So to the degree that this

 5   deals with injuries related to a fire versus something

 6   that's sort of maybe a genetic malfunction or a disease

 7   giving rise to the amputation, is there any way you

 8   could be in a position to set your personal situation

 9   with your brother-in-law aside from the reality that

10   we're going to try to present based on the facts of this

11   case?

12                          PROSPECTIVE JUROR JONES:            Well, in my

13   opinion, it was negligence on his part, also.                 It wasn't

14   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

18   why right now is -- I wouldn't want to put myself in a

19   position to swear it either way because of the issues in

20   my mind and what I'm thinking about the situation.

21                          MR. SPARKS:      Okay.    Okay.      More of an

22   emotional versus professional?

23                          PROSPECTIVE JUROR JONES:            Correct,

24   correct.

25                          MR. SPARKS:      But if, in fact, you were



             Cause No. 2009-40925, Wagner Vs. Four J's, et al     000727
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 1   selected to the jury as a professional --

 2                         PROSPECTIVE JUROR JONES:            Uh-huh.

 3                         MR. SPARKS:      -- you could separate the

 4   two?     Fair enough?

 5                         PROSPECTIVE JUROR JONES:            I could try,

 6   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

12   courtroom.)

13                         (Prospective Juror Schuman enters the

14   courtroom and takes the stand.)

15                         THE COURT:     Ms. Schuman, if you could

16   come forward and have a seat in this chair next to me.

17   We've got a microphone right there.             That way everyone

18   hears what you tell us.         Right up here.

19                         Mr. Terry?

20                         MR. TERRY:     Thank you.

21                         Ms. Schuman, looking back on my notes,

22   I saw something that I wanted to ask you some questions

23   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
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 1   when I was asking you about corporate responsibility and

 2   individual responsibility.

 3                        And from my notes, it looks like, I

 4   guess, that you are in agreement that -- I guess you

 5   have a bias towards the individual as opposed to a

 6   company, meaning you would side more with an individual

 7   and -- in protecting their assets versus holding a

 8   company responsible?       Do you recall that line of

 9   questioning?

10                        PROSPECTIVE JUROR SCHUMAN:          I do.      I

11   do.

12                        MR. TERRY:     Okay.     And I believe my

13   notes are everywhere; so I'm trying to get some

14   clarification.

15                        PROSPECTIVE JUROR SCHUMAN:          I don't

16   know that -- "bias" seems such a strong term for me.

17   It's -- I'm just of the opinion that, you know, that's

18   the reason that most companies incorporate, is to

19   protect themselves from that personal liability.

20                        And it's not -- I really -- it's that

21   punitive thing.     I mean, you're punishing someone

22   individually for what might have fallen under the

23   purview of their corporate responsibilities.

24                        MR. TERRY:     Okay.     So no matter what

25   amount of evidence that I can show to you as far as the



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 1   individual's concerned, you have this in the back of

 2   your mind that, look, you know, the company's the one

 3   who's going to be responsible, it's not going to be the

 4   individual, and I'm not going to hold them responsible?

 5                          PROSPECTIVE JUROR SCHUMAN:             I -- it's

 6   not no matter what.         I really would look at the

 7   evidence.

 8                          But I do -- I mean, with my experience

 9   practicing law, I don't -- not a lot in civil, criminal

10   attorney -- but I spent about 11 months -- that's all I

11   could last in the civil firm -- because a lot of the

12   time, it was just how much money can we get, how much

13   money can we get?        And I'm just very sensitive, you

14   know.

15                          If the corporation failed, believe me,

16   I think they should be held responsible.                   I firmly feel

17   that way with the climate going on now.

18                          But that individual, whether it's the

19   CEO, you know, financial officer or whatever it is, you

20   know, how much -- how much do you hold them personally

21   liable based on -- based on the -- the obligations,

22   responsibilities, liabilities of the corporation?

23                          MR. TERRY:     Okay.     So when I'm making

24   that argument as opposed to the individual, I'm

25   already -- I'm starting behind?             I'm already losing that



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 1   race as the plaintiff?

 2                       PROSPECTIVE JUROR SCHUMAN:           I hate to

 3   say it that way because I want to be fair.              I want to

 4   respect what the judge says, what the law is, what the

 5   evidence shows.     I -- you know, I -- I've kind of always

 6   wanted to be known as the fair-minded attorney.              I try

 7   to be reasonable.

 8                       But personally, take my -- I'm not here

 9   as an attorney.     Yeah.    I have a hard time punishing

10   someone individually because I think their intent was to

11   incorporate themselves to protect against that.              But I'm

12   not going to say I can't do it if I'm instructed.

13                       MR. TERRY:     But you -- again, your

14   attorney aside, your attorney hat's off and your

15   individual hat's on, as far as my arguments against

16   liability on the individual, I'm already behind that

17   race without hearing anything else?

18                       PROSPECTIVE JUROR SCHUMAN:           My opinion,

19   you're behind -- you're running -- you're barred by my

20   opinion, but -- but I would do my best to put my

21   personal opinion aside.       And that's really the best I

22   can do.   I'm -- I'm -- you know, it -- if it's -- if

23   it's fair damages, pain and suffering, injuries -- I

24   mean, this is a hard case.        It's breaking my heart

25   already looking at -- you know, even the one who's the



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 1   guardian, but the mom -- I mean, you know, the whole

 2   mother thing, losing your children, having them injured,

 3   I don't care what age they are, you can tell I get

 4   emotional about it.      So I can feel for them, and I think

 5   they should be compensated.

 6                       But the question is by whom and how

 7   much and why.

 8                       But -- but that punitive part of it --

 9   I'm a criminal defense attorney.          You know, the

10   punishment thing is hard for me to -- it has to be

11   legitimate, fair, and reasonable; and that's probably

12   the best I can give you guys.

13                       MR. TERRY:     No further questions, Your

14   Honor.

15                       THE COURT:     Mr. Sparks?

16                       MR. SPARKS:      Briefly, Judge.

17                       You indicated you're a criminal defense

18   lawyer; is that correct?

19                       PROSPECTIVE JUROR SCHUMAN:          Uh-huh.

20                       MR. SPARKS:      And people are held

21   responsible criminally all the time for acts involving

22   corporations.    You're aware of that; is that fair?

23                       PROSPECTIVE JUROR SCHUMAN:          (Nods

24   head.)

25                       MR. SPARKS:      And no one's asking you to



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000732
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 1   make that type of assessment here.

 2                          PROSPECTIVE JUROR SCHUMAN:          Right.

 3                          MR. SPARKS:      What we're asking you in a

 4   nutshell is whether or not your training and your

 5   professionalism can be set aside to listen to the

 6   evidence and make a decision?

 7                          Now, the judge is going to give you an

 8   instruction; but he can't instruct you how to rule or

 9   render your opinion with 11 other people.

10                          PROSPECTIVE JUROR SCHUMAN:          Correct.

11                          MR. SPARKS:      And what we're concerned

12   about is whether or not your experiences and your

13   professional life could impact upon 11 other people

14   based upon your misgivings about punitive damages.

15                          And if that's the case, just let us

16   know, because it might be appropriate in terms of your

17   feelings across the street; but over here it's just a

18   different animal.        And we want to make sure that we're

19   not subjecting the jury panel to, as Mr. Plummer would

20   say, an additional expert where we don't get a chance to

21   cross-examine and you're back there influencing the

22   jury.

23                          PROSPECTIVE JUROR SCHUMAN:          And I would

24   do my best to do that.          I would tell you that I can do

25   that, put all that aside and listen to what I'm



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 1   instructed -- what the law is, what the instructions

 2   are, what the burdens are, more importantly the facts,

 3   how the facts fall, you know, do they establish the --

 4   the liability.

 5                         Of course I'm going to try to do that,

 6   because I -- I -- I take an oath.            And again, I try to

 7   be fair and reasonable.

 8                         As far as influence?         You know, I've

 9   interviewed my jurors postverdict sometimes.               You never

10   know who that influence is going to be.              And -- and, you

11   know, if there's an opinionated person, doesn't

12   matter -- people are -- if people are followers, they're

13   going to follow someone who speaks up and, you know, may

14   exert more of a conversation or position.

15                         I can't say I'm not going to be that

16   person, if, in fact, the -- the evidence, the facts, the

17   testimony, you know, pushes me to one side.               It -- I'm

18   going to stand up for what I believe, and that you can

19   count on.    But I will do it within the limits of the

20   law.

21                         I'm not going to use my background or

22   experience, you know; and -- and I do have my opinions

23   on certain things.       Like I say, you know, working in

24   that civil firm was hard for me because to me they

25   lacked an element of fairness.



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 1                       It wasn't that the burdens weren't as

 2   strong.   I couldn't hold the -- you know, the

 3   adversaries to the same standards that you do in a

 4   criminal courtroom.      But I could put that aside.

 5                       MR. SPARKS:      But would you be trying to

 6   hold us to a higher standard since it's a civil case

 7   similar to what you --

 8                       PROSPECTIVE JUROR SCHUMAN:          No.   I

 9   understand those differences.         And I understand what

10   positions you are all in and I respect that.             And I

11   could also see all of your professionalism and your

12   dedication to the case and those two ladies sitting

13   there.

14                       So I -- I would hold you to -- to

15   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

20   we didn't want to talk about it during the panel

21   examination.   When we're talking about punitive damages,

22   actually in Texas we're talking about exemplary damages

23   and that in Texas there's a higher standard of proof

24   to -- to merit award of exemplary damages than

25   preponderance of the evidence.



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 1                       You've heard of us talk about

 2   preponderance of the evidence during the panel

 3   examination.

 4                       But actually, in order to prove

 5   liability for exemplary damages and to prove the amount

 6   of exemplary damages, the claimant has to establish

 7   their right to any amount by clear and convincing

 8   evidence, not simply preponderance of the evidence.

 9                       Understanding that there's a higher

10   level of standard of proof for exemplary damages, will

11   you be able to follow my instructions, look at the

12   evidence, and make a decision as to each defendant on

13   their own, whether they should be liable for exemplary

14   damages and, if you decide they should be, the amount of

15   exemplary damages based on that standard of proof?

16                       PROSPECTIVE JUROR SCHUMAN:          I -- I will

17   make every effort, absolutely.         I'm not going to say no.

18   I'm going to interpret and then apply -- interpret the

19   facts and evidence and then apply your instructions,

20   knowing the clear and convincing evidence standard.

21                       THE COURT:     All right.      Thank you.

22                       PROSPECTIVE JUROR SCHUMAN:          That's the

23   best that I could do.

24                       THE COURT:      Have a good lunch.       We'll

25   see you back at 1:15.



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 1                       PROSPECTIVE JUROR SCHUMAN:           Thank you.

 2                       (Prospective Juror Schuman leaves the

 3   courtroom.)

 4                       (Prospective Juror McCraw enters the

 5   courtroom and takes the stand.)

 6                       THE COURT:     Mr. McCraw, if you could

 7   come forward and have a seat in this chair here next to

 8   me, please.

 9                       All right.     Mr. Terry.

10                       MR. TERRY:     Thank you, Judge.

11                       Mr. McCraw, looking back on my notes,

12   some of the questions I asked, I want to talk to you a

13   little bit about that.

14                       And they're kind of all over the place;

15   but when I was asking you questions in regards to

16   individuals and then corporations and holding

17   individuals responsible, you said that was something

18   you -- you couldn't do.

19                       Did I remember that correctly?

20                       PROSPECTIVE JUROR MCCRAW:           That is

21   pretty adamant.

22                       MR. TERRY:     Okay.     So that's a bias

23   that you walked in here today; and no matter what I show

24   to you, no matter what amount of evidence, that's

25   something that is not going to change your mind?



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 1                         PROSPECTIVE JUROR MCCRAW:           The whole

 2   time I'm going to be sitting here thinking blame is a

 3   matrix.    It's not something that falls on any single --

 4   especially not a person.

 5                         MR. TERRY:     Okay.     So there's no amount

 6   of evidence I can show you -- you're going to think what

 7   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

10   I'm -- I've -- I'm pretty set on that belief.

11                         MR. TERRY:     So you really wouldn't be

12   fair for this trial?

13                         PROSPECTIVE JUROR MCCRAW:           Correct.

14                         MR. TERRY:     Okay.     No further

15   questions, Your Honor.

16                         THE COURT:     Mr. Sparks?

17                         MR. SPARKS:      Thank you, sir.

18                         I mean, I didn't have any questions,

19   sir.

20                         THE COURT:     All right.       Mr. Raval?

21                         MR. RAVAL:     Do you think you can make a

22   decision in this case, if you're on this jury, based on

23   the evidence that you see and hear in this case or not?

24                         PROSPECTIVE JUROR MCCRAW:           I would

25   actually go as far as to say that if I were a part of



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 1   the jury, I would make it -- I mean, if I -- if I make

 2   the jury, it's going to -- my bias is going to become

 3   part of me as a juror and it may bleed over to others,

 4   as well

 5                       MR. RAVAL:     Thank you for your honesty.

 6                       THE COURT:     Mr. McCraw, you understand

 7   that as a citizen you have the same right to a jury

 8   trial as every -- the parties in this case?             You

 9   understand that?

10                       PROSPECTIVE JUROR MCCRAW:           Yeah.

11                       THE COURT:     You understand that we

12   created the jury system over 800 years ago because we

13   decided that having one person make these decisions was

14   more dangerous than having 12 citizens bring their own

15   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

19   it's important in order for the system to work to make

20   sure that everyone gets that fair shot, that we have

21   people who will come in and lay their biases aside and

22   will listen to the evidence and make a fair and just

23   decision on whatever dispute is presented to them?

24                       PROSPECTIVE JUROR MCCRAW:           And I'm

25   comfortable with doing that in most every aspect of my



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 1   life except for when it comes to delivering awards,

 2   especially monetarily, on something that is this

 3   complicated as blame.

 4                       I mean, I would have no qualms in a lot

 5   of other trials; but it would be -- it would be a -- it

 6   wouldn't be easy for me to put myself in the position

 7   that I would need to be in on a case like this in order

 8   to deliver fairness.

 9                       And that's the -- that's the -- the

10   brilliance of the system is the fairness; and that's the

11   only reason why I'm speaking up, saying I don't -- I

12   want a fair trial for everybody, and I just don't think

13   that -- it would be a challenge to set aside the bias

14   and -- and be as fair as I would need to be.

15                       THE COURT:     Okay.     Thank you.      Have a

16   good lunch.   We'll see you back at 1:15.

17                       (Prospective Juror McCraw leaves the

18   courtroom.)

19                       THE COURT:     All right.      Mr. Terry, any

20   motions to strike?     Just give me the numbers, and we'll

21   argue them, if we need to, afterwards.

22                       MR. TERRY:     6, 25, 41.

23                       THE COURT:     And, Mr. Sparks, any -- any

24   additional motions to strike?

25                       MR. SPARKS:      Yes, Judge.        5 and 25, 41.



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 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

 6   right.    We'll start here.

 7                          MR. RAVAL:     And, Your Honor, also

 8   Number 9 and Number 12.

 9                          MR. PLUMMER:      And, Judge, can we talk

10   about Judge Elrod?

11                          THE COURT:     She -- we're not going to

12   get to her, based on the number of folks here that --

13   you know, I've got one, two, three, four, five, six,

14   seven -- even if I granted the hardships, we're not

15   going to get to her.

16                          MR. PLUMMER:      My gut is she'd love to

17   serve, but --

18                          THE COURT:     There was never anything

19   said during voir dire that would even approach a reason

20   to strike her.

21                          MR. PLUMMER:      No, no, no.       That's not

22   what I'm saying.        She would love to serve because she's

23   part of the system.         She would love to see it from this

24   side.    So I was going to discuss that with the Court.

25                          But, you know, I'd love to have her on



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 1   the jury, to be honest.

 2                       THE COURT:     Well, unfortunately, we're

 3   not going to get to her based on the motions to strike

 4   that I have.

 5                       MR. PLUMMER:      Okay.

 6                       THE COURT:     Let's start here:         First of

 7   all, the Plaintiffs and Intervenors have moved to strike

 8   5, 6, 25, and 41.     Do y'all oppose any of those,

 9   Mr. Plummer; or are there any that you agree to?              Make

10   it easier.

11                       MR. RAVAL:     We can agree to Number 41

12   and Number 5.

13                       THE COURT:     All right.      And the

14   Defendants have moved to strike 3, 9, 12, and 14.

15                       Mr. Terry and Mr. Sparks, are there any

16   of those that you can agree to?

17                       All right.     Hearing no argument, we'll

18   start first with Plaintiff's motion to strike Number 6.

19                       Mr. Terry?

20                       MR. TERRY:     Yes, Your Honor.        This was

21   Ms. DeSoto, who was represented by Mr. Plummer's firm.

22   I believe when we asked her on the stand, she said that

23   she would be leaning towards Mr. Plummer.

24                       THE COURT:     Mr. Plummer or Mr. Raval,

25   whoever's going to argue.



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 1                       MR. RAVAL:     Your Honor, she did

 2   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

 6   Mrs. Schuman who we just heard from.

 7                       And I know she was kind of all over the

 8   board, but I believe she did state at one point -- you

 9   know, when I asked her what -- am I going to be behind,

10   losing this race?

11                       And she said, yes, personally from my

12   opinions, yes, you will be.

13                       And really, that's what we're here for,

14   Your Honor, is her opinions and her bias.               You know, is

15   that something she's really going to be able to set

16   aside and listen to the facts?         I doubt it.

17                       THE COURT:     25 is denied.

18                       All right.     Defendant's motion to

19   strike Number 3.     Mr. Raval.

20                       MR. RAVAL:     Your Honor, Mr. Dixon,

21   Number 3 indicated in answer to a question that he could

22   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.



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 1   He indicated that he knew one of the people who will be

 2   testifying as an expert witness.            He also said that he

 3   knew -- had knowledge of the statutes and the codes and

 4   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

 7   required -- I believe he indicated that he would require

 8   sprinklers in a home like this.            That's another

 9   indication that he would not be able to be unbiased in

10   this case.

11                         THE COURT:      Response?

12                         MR. TERRY:     Your Honor, when I asked

13   him, given your background and your history, would you

14   be able to set that aside and listen to the facts and

15   make your decision based upon those facts, he answered

16   yes.

17                         THE COURT:     All right.      9 is granted.

18                         MR. SPARKS:      Judge, I --

19                         THE COURT:     9 is granted.        I mean, I

20   understand you've got some more argument; but I listened

21   to him --

22                         MR. SPARKS:      I respect that.

23                         THE COURT:     -- and I'm trying to give

24   y'all at least a little bit of a break here.               But I

25   won't cut you off --



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 1                       MR. SPARKS:      No problem.

 2                       THE COURT:     -- in the future.        I'm just

 3   working here.

 4                       Number 12, Mr. Raval?

 5                       MR. RAVAL:     Number 12:      Mr. Jones

 6   indicated that because of the situation with his

 7   brother-in-law and his special needs that he had some

 8   concerns about bias.      And though he did say he was bias

 9   towards both sides, I'm concerned that his personal

10   experience with home healthcare would lead him to be

11   bias in this case.

12                       Additionally, he has specialized

13   knowledge about investigating postfire loss; and though

14   he works more on the code -- or used to work more on the

15   code enforcement side, his specialized knowledge may be

16   carried into the jury room.

17                       THE COURT:     Response?

18                       MR. TERRY:     Again, Your Honor -- again,

19   when I asked him whether or not he could set that aside

20   and deal with the facts and make a decision based on the

21   facts that he heard here, I believe he said yes, that

22   was a possibility he could.

23                       And I understand he went both ways.            I

24   said, "Are we both behind the eight ball?"              He said,

25   "Yes."   So I don't think there's a bias, that he can go



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 1   one way or the other here.

 2                       THE COURT:     Mr. Sparks?

 3                       MR. SPARKS:      My feelings on this is

 4   that he was struggling, just like Venireman 25 was, yet

 5   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,

10   Ms. Harriss, has indicated in response to questioning

11   that based on the facts as she heard them this morning,

12   she would hold the corporation and/or the individual

13   liable.   She has indicated her bias and would not be

14   able to be an unbias juror in this case.

15                       THE COURT:      Response?

16                       MR. TERRY:     Your Honor, I don't

17   remember that questioning.        In fact, I specifically --

18   if I recall correctly, Mr. Plummer asking, "Look, can

19   everyone here be fair, given the particular facts and

20   the situations."     And they said yes.         So I just don't

21   remember when she said that, Your Honor.

22                       THE COURT:     Mr. Sparks?

23                       MR. SPARKS:      Judge, I didn't get

24   anything from Ms. Harriss that I thought that she would

25   be bias toward either side, Judge.



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 1                       THE COURT:     All right.       14 is denied.

 2                       All right.     All right.      We need to talk

 3   about Juror Number 21 whose mother-in-law is ill and may

 4   need to be taken off of life support.

 5                       In light of the fact -- first of all,

 6   before I do that -- so we've got Jurors Number 5, 6, 9,

 7   12, and 41 are struck for cause.

 8                       Does anybody object to me giving a

 9   hardship strike to Juror Number 21?

10                       MR. RAVAL:     No, Your Honor.

11                       MR. TERRY:     Your Honor, we like him.         I

12   mean, he's a good juror.

13                       MR. THWEATT:      What specifically did he

14   say to the Court about his --

15                       THE COURT:     His mother-in-law is

16   gravely ill and that it looks like they may be taking

17   her off of life support on Wednesday.            And I told the

18   jury we'd be going at least until Thursday.             The case

19   will probably go to deliberations Thursday afternoon.

20                       MR. TERRY:      That's fine, Your Honor.

21                       MR. SPARKS:      Judge, I think, under the

22   circumstances, I'd be the last to oppose it.

23                       THE COURT:     All right.      So 21 is also

24   struck.

25                       So we have six jurors struck for cause,



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 1   5, 6, 9, 12, 21, and 41.

 2                          41's outside the strike zone, anyway;

 3   so that's five jurors within the strike zone.                  Your

 4   current list should go up through and include Juror 29.

 5   Double-check my math.         Y'all need to get your preemptory

 6   strike lists into Di or Alex, whoever's up here, by

 7   1:15.

 8                          (Lunch recess)

 9                          THE COURT:     Let's bring the jury in,

10   please.

11                          (Prospective jury panel enters the

12   courtroom.)

13                          THE COURT:     Thank you.      Please be

14   seated.

15                          Ladies and gentlemen, thank you for

16   being so prompt and getting back so quickly.                  I do

17   appreciate it.

18                          The clerk will now call the names of

19   the jurors who will serve on our trial jury today.                     As

20   your name is called, please come forward.                  We've got a

21   swinging door right there, right there, and right there

22   (indicating).       Come forward up around and into the jury

23   box, and please sit in the order in which you are

24   called.

25                          THE CLERK:     The first person is



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 1   Maria DeLeon, Ameenah Campbell, Luke Reed, Kendrah

 2   Billings, Felicia Chuang, Oliver Talton, Robert -- I'm

 3   sorry -- Cecilia Taft, Robert Horvath, Martin Pape,

 4   Jacqueline Murphy, Betty Zavala, Brandon Farrell.

 5                       THE COURT:     All right.      Ladies and

 6   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

11   want to thank you once again for taking time of out of

12   your busy day to come forward and perform your service

13   as jurors.

14                       We know it is not always convenient for

15   everyone, but it is crucial that we have good people

16   like you and good people like the members of the trial

17   jury who will come down and perform this service for

18   your fellow citizens.

19                       In Harris County we have a one jury

20   service call rule, which means once you are called from

21   the jury assembly building to a particular court, if you

22   are not selected for the trial jury in that court, you

23   have completed your jury service and will be released

24   and can leave.

25                       We have work release forms issued by



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 1   the District Clerk's Office.         It's an official piece of

 2   paper showing you were here in the 269th Judicial

 3   District Court today in case you've got a subordinate, a

 4   boss, a significant other who needs proof that you were

 5   here instead of playing hooky, we've got official

 6   government paperwork that, yes, you did spend the day in

 7   the 269th District Court.        Those work release forms will

 8   be available to anyone who needs them out in the hallway

 9   after you're excused.

10                       I'd also like to extend my welcome to

11   my good friend and fellow colleague on the Bench,

12   Judge Elrod, Juror Number 46.

13                       Judge Elrod's one of the really, really

14   good judges in the state of Texas.           She is a judge of

15   the United States Court of Appeals for the Fifth

16   Judicial Circuit, which means she's really, really

17   important.   But she came down here today just like every

18   one of you to perform her service as a citizen; and I

19   think that's important for y'all to recognize, that when

20   it comes to jury service -- I don't think very many of

21   you knew that she was a judge.

22                       She was just like y'all, and I think

23   that's a credit to her, I think it's a credit to my

24   profession as a judge, but I think it's also a credit to

25   you that she wanted to be a part of this as much as



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 1   you-all were a part of this.

 2                         So, Judge Elrod, thank you for coming

 3   down and gracing our courtroom with your wonderful

 4   presence.    It's always a joy to have you.

 5                         With that, you're all excused.              Thank

 6   you.

 7                         (Prospective Jury panel excused.)

 8                         THE COURT:     Thank you.      You may be

 9   seated.

10                         All right.     First of all, ladies and

11   gentlemen, you should find a juror badge on the rail in

12   front of your seat.        You're about to hear some

13   instructions I'm going to give you that require some

14   formalities that people need to observe when they're

15   interacting with jurors.

16                         In order for them to know that you are

17   a juror so that they know what to do, we need you to

18   wear those juror badges whenever you're in the

19   courthouse or really even whenever you're in the

20   vicinity of the courthouse.          That way no one

21   accidentally slips up.

22                         You should have also found a notebook

23   in your chair when you went to your chair.                That

24   notebook has pen, paper, and a pamphlet in it.                   The

25   pamphlet has some instructions I'm going to read to you.



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 1                         The pamphlet also has court contact

 2   information for you-all so if you need to contact us,

 3   for whatever reason, you know how to contact us.                So

 4   hold on to that pamphlet.          It is yours to keep.

 5                         I'm going to read those instructions to

 6   you.   You can listen to me read them to you; or you can

 7   read along, as you like.         I may intersperse some

 8   editorial commentary as we go along.

 9                            JURY INSTRUCTIONS

10                         THE COURT:      Members of the jury, you

11   have been chosen to serve on this jury.              Because of the

12   oath you have taken in your selection for the jury, you

13   become officials of this court and active participants

14   in our justice system.

15                         I'm going to read these instructions to

16   you.   Some of them have -- you have heard before and

17   some are new, so just be patient and bear with em.

18                         Number 1, turn off all phones and other

19   electronic devices.        Now, silent mode is not good

20   enough.    It needs to be turned off.

21                         While you are in the courtroom and

22   while you are deliberating, do not communicate with

23   anyone through any electronic device.              For example do

24   not communicate by phone, text message, e-mail message,

25   chat room, blog, or social networking Web sites such as



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 1   FaceBook, Twitter, or MySpace.

 2                       Do not post information about the case

 3   on the Internet before these court proceedings end and

 4   you are released from jury duty.          Do not record or

 5   photograph any part of these court proceedings.                It is

 6   prohibited by law.

 7                       2, to avoid looking like you are

 8   friendly with one side of the case, do not mingle or

 9   talk with the lawyers, witnesses, parties, or anyone

10   else involved in the case.        You may exchange casual

11   greetings like "hello" and "good morning."              Other than

12   that, do not talk with them at all.           They have to follow

13   these instructions, too; so you should not be offended

14   when they follow the instructions.

15                       3, do not accept any favors from the

16   lawyers, witnesses, parties, or anyone else involved in

17   the case and do not do any favors for them.             This

18   includes favors such as giving rides and food.

19                       4, do not discuss this case with

20   anyone, even your spouse or a friend, either in person

21   or by any other means, including by phone, text message,

22   e-mail message, chat room, blog, or social networking

23   Web sites such as FaceBook, Twitter, or MySpace.

24                       Do not allow anyone to discuss the case

25   with you or in your hearing.         If anyone tries to discuss



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 1   the case with you or in your hearing, tell me

 2   immediately.     We do not want you to be influenced by

 3   something other than the evidence admitted in court.

 4                         5, do not discuss this case with anyone

 5   during the trial, not even with the other jurors, until

 6   the end of the trial.        You should not discuss the case

 7   with your fellow jurors until the end of the trial so

 8   that you do not form opinions about the case before you

 9   have heard everything.

10                         After you have heard all the evidence,

11   received all my instructions and heard all the lawyers'

12   arguments, you will then go to the jury room to discuss

13   the case with the other jurors and reach a verdict.

14                         6, do not investigate this case on your

15   own.   For example, do not try to get information about

16   the case, lawyers, witnesses, or issues from outside

17   this courtroom, go to places mentioned in the case to

18   inspect the places, inspect items mentioned in this case

19   unless they are presented as evidence in court, look

20   anything up in a law book, dictionary, or public record

21   to try to learn more about the case, look anything up on

22   the Internet or try to learn more about the case -- that

23   means no Googling or Web searching -- or let anyone else

24   do any of these things for you.

25                         This rule is very important because we



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 1   want a trial based only on evidence admitted in open

 2   court.   Your conclusions about this case must be based

 3   only on what you see and hear in this courtroom because

 4   the law does not permit you to base your conclusions on

 5   information that has not been presented to you in open

 6   court.

 7                       All the information must be presented

 8   in open court so the parties and their lawyers can test

 9   it and object to it.      Information from other sources,

10   like the Internet, will not go through this important

11   process in the courtroom.

12                       In addition, information from other

13   sources could be completely unreliable.            As a result, if

14   you investigate this case on your own, you could

15   compromise the fairness to all parties in this case and

16   jeopardize the results of this trial.

17                       7, do not tell other jurors about your

18   own experiences or other people's experiences.              For

19   example, you may have special knowledge of something in

20   the case, such as business, technical, or professional

21   information.   You may even have expert knowledge or

22   opinions, or you may know what happened in this case or

23   another similar case.

24                       Do not tell the other jurors about it.

25   Telling other jurors about it is wrong because it means



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 1   the jury will be considering things that were not

 2   admitted in court.

 3                          8, do not consider attorneys' fees

 4   unless I tell you to.         Do not guess about attorneys'

 5   fees.

 6                          9, do not consider or guess whether any

 7   party is covered by insurance unless I tell you to.

 8                          10, during the trial, if taking notes

 9   will help focus your attention on the evidence, you may

10   take notes using the pen and paper provided in your

11   notebooks.      Do not use any personal electronic devices

12   to take notes.       If taking notes will distract your

13   attention from the evidence, do not take notes.                 Your

14   notes are for your own personal use.              They are not

15   evidence.

16                          Do not share or read your notes to

17   anyone, including other jurors.             You must leave your

18   notes in the jury room or with the bailiff.                The bailiff

19   is instructed not to read your notes and to give your

20   notes to me promptly after collecting them from you.

21                          I will make sure your notes are kept in

22   a safe, secure location and not disclosed to anyone.

23   You may take your notes back into the jury room and

24   consult them during the deliberations, but keep in mind

25   that your notes are not evidence.



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 1                       When you deliberate, each of you should

 2   rely on your independent recollection of the evidence;

 3   and you should not be influenced by the fact that

 4   another juror has or has not taken notes.

 5                       After you complete your deliberations,

 6   the bailiff will collect your notes.           When you are

 7   released from jury duty, the bailiff will promptly

 8   destroy your notes so that nobody can read what you

 9   wrote.

10                       11, I will decide matters of law in

11   this case.    It is your duty to listen to and consider

12   the evidence and determine fact issues that I may submit

13   to you at the end of the trial.

14                       After you've heard all the evidence, I

15   will give you instructions to follow as you make your

16   decision.    The instructions also will have questions for

17   you to answer.    You will not be asked and you should not

18   consider which side will win.         Instead, you will need to

19   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

22   guilty of juror misconduct; and I may have to order a

23   new trial and start this process over again.

24                       This would wasted your time and the

25   parties' money and would require the taxpayers of this



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 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

 5   review them as we go through this case.            If anyone does

 6   not follow these instructions, tell me.

 7                       Now, again, I told you the pamphlet has

 8   court contact information on it; so if you need to

 9   contact us when you're away from court, you'll be able

10   to do so.   So hold on to those pamphlets.

11                       I want to talk to you about how things

12   are going to proceed.

13                       You-all have had a chance to have a

14   lunch break.   The lawyers have not yet.           They worked

15   entirely through that break where y'all had a break.               So

16   after I'm done giving you these instructions, we're

17   going to take a 30-minute break.

18                       Lois, the bailiff, will show you where

19   the jury room is.     That will also give you-all an

20   opportunity to contact family, friends, let them know

21   that you're on the jury and to make whatever scheduling

22   accommodations you might need to make with work or home

23   life to adjust accordingly.

24                       So rather than making people wait until

25   the end of the day wondering in suspense whether you



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 1   were picked for the jury or not, you can call them in a

 2   few minutes.

 3                       How the schedule's going to proceed

 4   after that:    After we come back from that break, the

 5   parties will give their opening statements.             The first

 6   witness will be called.

 7                       We are probably going to break today

 8   around 4:30, 4:45.     You're in a different building than

 9   you started out with.      So you need some time to gain

10   your bearings about where you are and whatnot.              And it's

11   been a long day, I know.       Y'all were supposed to report

12   at 8:00 a.m. this morning; so we'll break a little

13   early.

14                       Tomorrow we start at 8:30; and every

15   day from here on out, we start at 8:30.            If you are not

16   familiar with driving into downtown at that hour, it

17   will take you longer than you expect; so please plan

18   your commute accordingly so you're here in plenty of

19   time for us to start promptly at 8:30.

20                       We usually take one midmorning break

21   around the 10 o'clock hour, we take a lunch break of

22   about an hour and 15 minutes or so, and then we take one

23   midafternoon break around 3 o'clock or so, and then

24   starting tomorrow and the rest of the trial we'll finish

25   up at about 5:00 each day.



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 1                       I tell you that so you kind of have an

 2   idea how things are going to go, when you might be able

 3   to check in with the office or check in with family as

 4   the trial proceeds.

 5                       I told you out in the hallway -- and

 6   I'm serious about this -- we really do our best in this

 7   court to maximize your time, make sure that we're using

 8   your time as productively and efficiently as possible.

 9                       One of the things we do is the use of

10   technology to help along with that.           You may have seen

11   in movies or plays or television series, every once in

12   awhile in the middle of a trial for some reason or

13   another, the lawyers and the judge have to talk to each

14   other outside the presence of the jury.

15                       Oftentimes you see it in one of two

16   ways, either the lawyers come up to the bench and the

17   judge huddles over with them and they whisper to each

18   other so that the jury can't hear them or the judge

19   excuses the jury, the jury shuffles off to the jury room

20   for an unknown amount of time, then the bailiff gathers

21   the jury back up and lines them back up and brings them

22   back in.

23                       Both of those methods are pretty

24   inefficient, all the -- all things being equal.              We've

25   got some technology that helps us really make that a



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 1   much more efficient process.

 2                       When we have those conferences outside

 3   the presence of the jury, y'all will be able to stay in

 4   the jury box, and I will turn on some white noise.

 5   There are some speakers above your jury box that

 6   ordinarily project to you what's being said over the

 7   microphones.

 8                       When I turn the white noise on instead,

 9   you'll hear white noise.       It sounds like this

10   (indicating).

11                       It's used to drown out what the lawyers

12   and I are saying to each other.          We're not doing it to

13   annoy you or harass you or make you uncomfortable.

14   We're using it in order to speed things up.                That way

15   we're not expending extra time, y'all shuffling back and

16   forth, wondering whether you can go use the restroom or

17   brew another pot of coffee or anything like that.                    So it

18   is a great time-saver.

19                       I've had some jurors say why can't we

20   get some music or some good tunes on it.                It's not in

21   the County budget.     You know, it's a little tight right

22   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

25   up, if you need to, to stretch, twist around,



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 1   whatever -- you know, shake the numbness out of your

 2   legs.    I understand that.         But I ask you not to talk

 3   because our court reporter is still trying to take down

 4   everything we're saying.

 5                          You'll see she has some headphones on,

 6   but she can still hear voices behind her if y'all are

 7   talking.     And again, it makes her job very, very

 8   difficult if y'all are talking while we're doing that.

 9                          So I'd ask while you stand up and

10   stretch during those conferences that you not talk to

11   each other.

12                          All right.     We're going to take, like I

13   said, a lunch break for the lawyers and, frankly, for

14   me, as well, and for my court reporter.               It will be

15   about 30 minutes.        It's about 1:40 now.         We'll start

16   back up at ten after 2:00.

17                          So those of you who need to make some

18   phone calls, you'll be able to make some phone calls.

19   You can do that and make whatever arrangements you need

20   to make for the rest of the day.             All right?     See you in

21   30 minutes.

22                          You can ask the bailiff a question.

23                          (Jury out.)

24                          (Recess.)

25                          MR. THWEATT:      Your Honor, for some



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 1   reason, we're having a technology problem with the

 2   laptops.    We can do it the old-fashioned way if it

 3   doesn't work, but I understand that your bailiff is

 4   somewhat experienced with this.

 5                         THE COURT:     I'm sorry.      You've got --

 6   what do you mean?       You're having some technology issues?

 7                         MR. THWEATT:      My display is not showing

 8   up on the screen, for whatever reason.              I don't know

 9   why.

10                         MR. PLUMMER:      We can try to help you.

11                         (Discussion off the record.)

12                         MR. THWEATT:      Your Honor, if we could

13   have the screen.

14                         THE COURT:     It will come down after the

15   jury comes in.

16                         MR. THWEATT:      All right.

17                         THE BAILIFF:      All rise.

18                         (The following proceedings were had in

19   open court, jury present.)

20                         THE COURT:     Thank you.      Please be

21   seated.

22                         We'll now start opening statements.

23                         Mr. Thweatt.

24                    PLAINTIFF'S OPENING STATEMENT

25                         MR. THWEATT:      May it please the Court,



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 1   counsel.

 2                         Good afternoon, ladies and gentlemen.

 3   My name is Lee Thweatt, and I have the distinction of

 4   representing Ms. Jenny Wagner.           And I'm going to show

 5   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

10   that because she's about a month younger than I am -- or

11   about a month older than I am.           Excuse me.

12                         But from a very early age, she was

13   diagnosed with cerebral palsy.           She's been legally blind

14   for all of her life.        She has profound mental

15   retardation.     She's been unable to walk.               She cannot

16   feed herself.      She is totally dependent upon others to

17   care for her and has been basically for her entire life.

18                         That care person and that caretaker has

19   been her mother and, before he passed away, her father,

20   Bob.

21                         We're going to show you a picture now

22   of Jenny in grade school.          Despite her disabilities,

23   Jenny was able to attend school.            Her parents made sure

24   that that was part of her therapy and routine.

25                         And that young lady up there at the



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 1   very top in the middle portion is Jenny when she was in

 2   grade school.

 3                       Jenny's mother and her father took her

 4   to school.     That's where she received special education

 5   courses.     You can see that she's in a class with

 6   disabled folks, as well.

 7                       And she stayed in school until she was

 8   22 years old.     She actually did -- did accomplish and

 9   receive a diploma.     It's not like a diploma that you and

10   I might expect or appreciate, but it shows that her

11   family was committed to her and to her health and

12   well-being.

13                       This is a picture of Jenny and her

14   father, Bob, as Jenny aged.        As I said, Bob died of a

15   heart attack back in December of 2007.            And Patti and

16   Bob were married for many, many years.

17                       You'll hear about the life that they

18   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

21   to be right here, and I'm going to ask Patti to come

22   down and introduce her.

23                       And -- and you've already heard that

24   Jenny was very badly burned.         She had second- or

25   third-degree burns over about 20 to 30 percent of her



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 1   body.    You'll see pictures, and you'll see Jenny herself

 2   to see exactly what the condition of her physical

 3   stature is right now.         It will disturb you.            I wish I

 4   didn't have to show you that, but it's part of our duty

 5   under the law that you understand exactly what she's

 6   been through.

 7                          And we're not going to make a huge

 8   issue of this.       That's why we didn't have Jenny in here

 9   to start off with the trial.            She'll be -- very briefly,

10   so she's comfortable.

11                          And her grandparents are actually here

12   visiting from out of town to assist Patti with this

13   trial.    You'll hear they have a very close family.

14                          Jenny's aunt, Joan, lives next door to

15   Patti in an apartment out in Katy and they have a little

16   two-bedroom apartment where the two of them spend their

17   days.

18                          I told you that until Jenny was about

19   22 years old she was in a public school.                   Once she

20   turned 22, you'll hear Patti tell you-all that Patti and

21   Bob were encouraged to put Jenny in a full-time

22   residential facility.

23                          I don't know how many of you have ever

24   had the burden of caring for somebody 24/7 for over two

25   decades, but it can be very overwhelming and -- to the



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 1   point where you're not able sometimes to -- to do what's

 2   best for them.

 3                         And so upon that recommendation, they

 4   placed Jenny in a facility in San Antonio called

 5   The Willows.     She started there in 1995.               At the time,

 6   The Willows was the largest privately-held facility in

 7   the state of Texas dedicated to caring for persons with

 8   mental retardation.        It's now closed.

 9                         But in May of 2002 Jenny was placed

10   into Four J's Community Living Center, Inc.; and that's

11   one of the defendants in this case.

12                         Ms. Anthonia Uduma is another defendant

13   in this case.      Ms. Uduma owns 100 percent of Four J's

14   Community Living Center, Inc.           She's the president and

15   CEO.

16                         She also owns many houses here in

17   Houston and in Beaumont and in Corpus Christi.                  She buys

18   these houses on her own.         She's the sole owner.           And

19   then she leases them to her company.             It's over 30

20   houses.

21                         Ms. Uduma, of course, as the president

22   and CEO of a company that is solely dedicated to taking

23   care of persons with mentally retarded [sic] and

24   profound disabilities, knows who's going to be staying

25   in those homes.



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 1                       One of them was located in Missouri

 2   City, and the address is 16335 Beretta Court.             You will

 3   hear that that was a four-bedroom home.

 4                       If you were to drive by it before it

 5   burned down, you probably wouldn't have ever thought

 6   anything twice about it.       It looks just like any other

 7   bedroom home in any other bedroom community.             It's got a

 8   front yard and backyard and a nice wood fence.              There's

 9   nothing remarkable about it at all.

10                       But what is remarkable about it was

11   that on September the 4th, 2008, after Jenny had been

12   there since 2002 -- that's when she first moved into

13   that residence -- a fire started there.

14                       You heard some about that fire, and

15   we're going to get very indepth into what happened.

16                       But here's the basic facts:          One of the

17   resident there, a lady named Esperanza Arzola, who's

18   also mentally retarded -- she had a known history of

19   schizophrenia, bipolar disorder, suicidal acts, and

20   suicidal ideations.

21                       She was on antipsychotic medication.

22   She had a history of aggression towards staff who worked

23   at Four J's and a history of property destruction and

24   other violent actions.       All of that was known to

25   Four J's and to Ms. Uduma prior to the fire of September



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 1   the 4th, 2008.    Ms. Arzola was a very deeply disturbed

 2   person.

 3                       Now, they're going to tell you, I'm

 4   sure, that under the law, she was her own legal

 5   guardian; and that's true.        We're going to show you,

 6   though, that she was not able to care for herself.

 7                       She never should have had the kind of

 8   access to a cigarette lighter that she did come in

 9   fact -- in fact, come in contact with and use to start

10   this fire.

11                       You're going to hear from the staff

12   member who was working on duty that night, September the

13   4th, 2008.   Her name is Amuche Udemezue.               I may have

14   mispronounced that.

15                       THE COURT:     Mr. Thweatt, please return

16   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

20   Mr. Plummer in jury selection, that she was not properly

21   trained on how to respond to a fire.

22                       The pictures that we're going to show

23   you in this case -- and we'll go through them right now,

24   just a few of them, just to orient you -- this is a map

25   of the house (indicating) taken from a Houston arson



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 1   investigation.

 2                       And you can see there how closely the

 3   residents there [sic].       Esperanza Arzola, that's where

 4   the fire started.     Then you have Tanya James.          That's

 5   Mr. Shelton Sparks' client, for all -- for all intents

 6   and purposes.     She died in the fire.

 7                       Then we have Jenny.         That's Jenny's

 8   room (indicating), the living room, and then there's

 9   another lady named Alicia Campbell.

10                       Ms. Campbell and Ms. Esperanza Arzola

11   were both able to walk.       All four of them were mentally

12   retarded.    Tanya James and Jenny Wagner were the most

13   severely disabled in that home.

14                       Ms. Amuche Udemezue will tell you, she

15   placed everybody in bed.       Earlier that evening,

16   Ms. Arzola became upset at Amuche, for reasons that

17   you'll hear about.     She kicked out a window.          She tried

18   to run away.     She was basically misbehaving.

19                       And when I say "misbehaving," I mean in

20   the sense that she's not able to, in our estimation,

21   appreciate what she was doing.

22                       She then took a cigarette lighter, lit

23   her mattress on fire.      The house was equipped with smoke

24   detectors.

25                       You'll hear how Amuche basically



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000770
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 1   responded.     She never rendered assistance to Jenny or to

 2   Tanya.   That's undisputed.         She may have explanations

 3   for that.     Maybe Ms. Uduma or Four J's, Incorporated,

 4   will have explanations for that.

 5                         But there's no question that

 6   Jenny Wagner laid in her bed while smoke and flame

 7   locked around her and she was completely helpless in

 8   that bed.

 9                         The only reason she survived was

10   because the fire department got there in time to rescue

11   her.

12                         Ms. James survived for about 15 or 16

13   hours in critical condition at Memorial Hermann

14   Hospital, and then she succumbed to her injuries.

15                         My client, Jenny, was in the hospital

16   at Memorial Hermann for almost 30 days in critical

17   condition.     You will hear that she had extraordinary

18   care there.

19                         She had skin graft surgeries.           You'll

20   here about it.      It's -- it's something I wish I didn't

21   have to describe.

22                         She was then discharged back into her

23   mother's care, and Patti took her home.              Patti shuffled

24   her back and forth between doctors to care for her burns

25   and for her injuries.



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 1                       Patti will tell you that Jenny received

 2   so much in the way of medication, morphine, hydrocodone,

 3   that she was addicted to it by the time she was

 4   discharged.   She went through withdrawals just like you

 5   hear about street addicts going through.                She went

 6   through sweats.

 7                       Jenny no longer sleeps in her bed in

 8   her apartment because her mother will tell you it

 9   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

12   thing you're going to hear in this case is that despite

13   what Four J's knew about Esperanza Arzola before this

14   fire and despite what Ms. Uduma knew, as the property

15   owner, about the people who were going to be living

16   there and who she was charged with taking care of and

17   ensuring their safety, that Four J's and Ms. Uduma are

18   going to take this stand and they're going to swear

19   under oath that they hold no responsibility for these

20   injuries.

21                       They're going to place all of the blame

22   for this incident squarely upon Esperanza Arzola.                    She's

23   already testified to that in her deposition when I

24   questioned her.    I don't expect her to change her

25   testimony on the stand here in this trial.



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 1                       We think that the evidence will show

 2   you that that's outrageous and offensive.

 3                       We're going to ask at the conclusion of

 4   this trial to reconcile the egregious conduct with the

 5   injuries that resulted.

 6                       Jenny Wagner has about $91,000 in

 7   medical bills that she incurred as a result of the

 8   treatment from these burns.        She has permanent

 9   disfigurement, permanent scarring.           Her mother takes

10   care of her now, 24/7.

11                       We're going to ask that you award

12   compensation for those kinds of injuries to her person,

13   to the pain and the suffering that she experienced.

14                       Even though Jenny has the mental

15   capacity of a two-year-old, she's able, like any

16   two-year-old, to understand and appreciate what pain is.

17   Those of us with children know that, and we're going to

18   ask you to consider that.

19                       And we're going to ask you to confront

20   in this trial profound questions about the meaning of

21   life, about who is important in our society, about who

22   should be hold -- held responsible for caring for those

23   people, whose duty under the law and under common sense

24   and justice it was to make sure that Jenny Wagner and

25   Tanya James were safe and to prevent this from



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 1   happening.

 2                       There's no question in this case that

 3   Esperanza Arzola was the one who lit the cigarette

 4   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

 6   recover against someone else.

 7                       What I have to show is that they could

 8   have seen -- foreseen it, that they failed to act

 9   reasonably, and we're going to do that.

10                       I'm also going to ask you at the

11   conclusion of this trial to award exemplary damages.               In

12   Texas that's what we call punitive damages.

13                       Exemplary damages are designed, as the

14   word may suggest, to make an example, to show our

15   society and our community that this should never happen.

16                       There's a whole bunch of factors that

17   the judge will get into later about when you can award

18   those and when you can't, but it's that kind of a

19   serious case.

20                       Chapter 31 verse 8 and 9 of Proverbs

21   tells us we must speak for those who cannot speak for

22   ourselves [sic].     We have to stand up for the rights of

23   the poor and the destitute.        I'm not a biblical scholar,

24   but I do know that.

25                       And I will give Jenny a voice in this



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 1   trial.   I will give her mother a voice.           And at the end

 2   of it, I'm going to ask that you go back into that

 3   deliberation room and you give her a voice, too.

 4                       We look forward to showing you this

 5   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

10   gentlemen.   How are y'all doing?

11                       We have gone through the laborious

12   process of voir dire, and now we have the fine

13   distinction of being able to present our full case to

14   the 12 of you.

15                       We understand that at the beginning of

16   the morning when we started communicating we couldn't

17   give you a lot of the depth that you may have wanted in

18   order to answer some of the questions that we asked you.

19                       It was not that we didn't want to give

20   it to you, it's just that we had to determine, out of

21   the 48, which 12 would sit to hear the evidence.              Now

22   that that decision and that determination has been made,

23   you will get the opportunity here, the depth and the

24   breadth of the evidence from the Plaintiff, the

25   Intervenor, and the Defendants.



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 1                       And based upon that evidence, you will

 2   render a verdict, and we hope and we pray that it is

 3   based upon all the evidence and the information that you

 4   find that we've presented and that you find also in the

 5   best interests of our clients.

 6                       Now, Mr. Thweatt talked about

 7   Jenny Wagner being over with Four J's on Beretta Court;

 8   and so was Tanya James.       Tanya was there.

 9                       Tanya James had been a resident at

10   Beretta Court since 2002.        And she and Jenny were the

11   anchors, if you would, of that facility.                Periodically

12   other people would come and go out of that four-woman

13   home, but the two that remained there and stayed there

14   and had been there the longest was Jenny and Tanya

15   James.

16                       Some would leave, some would come, for

17   various reasons.

18                       In 2005 Esperanza Arzola came to that

19   facility.   And when she got there, she became

20   problematic.

21                       And when I say "problematic," I mean,

22   she started acting out.       She started leaving the

23   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



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 1   had to try to figure out what to do with her.

 2                        One of the things that was of a concern

 3   is that you had these four women -- Jenny Wagner,

 4   Tanya James, and whoever the other two was, and one

 5   caretaker -- trying to keep up with all four of them.

 6                        And Esperanza was the

 7   higher-functioning of the two of them and so she could

 8   kind of do what she wanted to do and she had the

 9   physical capacity to impose her will on the caretakers.

10   And they were afraid of her because she had physically

11   assaulted some -- or more than a few of them.              She had

12   physically assaulted herself.          She had threatened to

13   kill herself, and she had threatened to kill other

14   people.

15                        Knowing all this, they kept her in the

16   facility; but there's something else you need to know.

17   Not only did they keep her there at the facility, this

18   so-called 24/7 -- actually, during the day, they would

19   all leave and go to a day-hab facility, which is also

20   owned by Anthonia Uduma.        She owned the home, the

21   corporation, and the day care facility that they went

22   to.

23                        Now, at the day care facility, they

24   would be there for five to seven hours a day.              A van

25   would come by, load them up, take them to the day care



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 1   facility.     They'd be there for five to seven hours at

 2   the -- they'd get a meal, get some kind of training,

 3   they'd get some attention, and their needs would be met.

 4                       Then the van would pick them up, take

 5   them back to the home.

 6                       When they got back to the home, the one

 7   caretaker would provide their food, their medication,

 8   clothing, got them ready for bed, and it would start all

 9   over again.

10                       At the day-hab facility that was owned

11   by Ms. Uduma, all the other people from the other homes

12   and facilities that she had would also congregate there.

13   And when they would congregate there, those individuals

14   who wanted to could smoke.

15                       It wasn't unreasonable.             It wasn't

16   unusual.    It was common practice that Esperanza was a

17   smoker.     They knew she smoked.      They allowed her to

18   smoke.

19                       So they knew she had access to

20   cigarettes and they knew she had access to fire, yet

21   when we asked them about whether or not it was

22   reasonable to do a cursory pat-down to see whether or

23   not when she left the -- the day-hab facility and came

24   back to the home she had anything that could be of harm

25   to herself or other people, you're going to hear that



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 1   Ms. Uduma says, "Oh, that's against her rights," her

 2   rights not to be patted down or to be determined whether

 3   she had any objects that would be destructive to herself

 4   or others.

 5                          Even though she had a history and a

 6   propensity to do this, they felt that her right not to

 7   have to endure that little challenge, if you would,

 8   superseded the rights of our clients.

 9                          Our clients were sitting there in a

10   home with Esperanza Arzola, who's a ticking time bomb;

11   and they didn't want to engage her to determine whether

12   or not other contacts she had made with people in the

13   day facility would have generated an item of danger, if

14   you would, that when she came back to the Beretta Court

15   property, would harm our clients.

16                          And ultimately it did.         Ultimately it

17   did.

18                          You're going to hear about the fire.

19   But as important to the fire, you're going to hear about

20   due to Esperanza Arzola's frequency to elope -- which is

21   a term they used -- but she'd just leave when she wanted

22   to, go out in the neighborhood, smoke, hang out with

23   people.     They had to run around, find her, bring her

24   back.

25                          What they decided to do was -- well, a



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 1   couple of options they had was to bring in another

 2   facilitator to assist the one that was there to make

 3   sure she didn't leave, would be two people with four

 4   women as opposed to one.       They made a management

 5   decision.

 6                       By that, I mean this:         What they

 7   decided to do was to close off one of the exits in the

 8   home or lock it off, mind you, to the point where she

 9   couldn't leave when she wanted to.

10                       So here you have this facility, this

11   home, this care home that has a -- a -- a front door, a

12   back door, and a garage.       The back door -- you're going

13   to learn that once they got certified, that it had a --

14   it was a designated exit, fire exit, if you would, that

15   they had in the home in the case of an emergency to be

16   able to safely get these women out without any injury or

17   damage to them.    Yet, what they decided to do was lock

18   it and block it off.

19                       And not only did they lock it and block

20   it off, but they did it with a dead bolt lock that you

21   needed a key in order to open.

22                       Now, mind you, we've got women here who

23   have mental retardation, who have special needs in terms

24   of their ability to -- to be mobile -- she's

25   wheelchair-bound -- and you've got Esperanza Arzola,



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 1   who's a problem child, and then you have another

 2   individual that comes and goes.

 3                       And in this case, it was a lady named

 4   Alicia Campbell.     And she also was somewhat

 5   high-functioning.     And she was a physically challenging

 6   [sic] person, too, because she had a little bit higher

 7   function.   And she kind of wanted to do what she wanted

 8   to do.

 9                       So the caretaker's got two high-strung

10   women, and then she's got the other two she's got to

11   care for around the clock.

12                       And so they decided to put these two

13   with Jenny Wagner and Tanya James.           And so in order to

14   keep the high-functioning ones within the -- the

15   parameter of the home, rather than bringing somebody

16   else in to help, the care staff, they put a dead bolt

17   lock on the door.

18                       Now, they're going to tell you that,

19   oh, yeah, well, the staff there, we came in and we did

20   fire drills and -- and you're going to hear from her and

21   you'll look at some of the documents and how fast and

22   how swift they were able to get four people --

23   Jenny Wagner, Tanya James, Alicia Campbell, and all

24   them -- out of the house in mega seconds sometimes.

25   And -- and they all went out the front door.



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 1                          But they never went out -- or

 2   challenged trying to do the fire drill out the back door

 3   because the back door was always locked, always locked.

 4                          And as fate would have it,

 5   September 4th, 2008, Esperanza Arzola sets the house on

 6   fire.    The lone staff there panics.            The training she

 7   had been designed to do or had been trained to do or had

 8   been told to do -- just signs the documents and say

 9   you've done it -- she don't know what to do.

10                          She doesn't go get the fire

11   extinguisher.       She thought about going out -- taking

12   them out the back door, but the back door's locked.

13                          And guess what?       She didn't even have

14   the key.     She did not have the key to the back door; so

15   she panics.

16                          And what does she do?

17                          She did a thing called

18   self-preservation.        She left.      She left.

19                          She left Jenny in the house.           She left

20   Tanya in the house, and Tanya didn't make it.

21                          What you're going to hear from us is

22   that Tanya, when -- 1997, Tanya was taken into the

23   Harris County Guardianship Program and she was removed

24   from her family.        Her mother had some medical issues.

25   She got separated from her sister.



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 1                       But before she left, when she was 14

 2   years old, she had a son named Derrick James.             And

 3   Derrick has some special needs.          And her sister,

 4   Wylette Taylor, is his guardian.

 5                       And Wylette tried for years to find out

 6   where her sister was.      They wouldn't give her the

 7   information because she needed a lawyer to find out.

 8   That was privileged information.          It was

 9   HIPAA-protected, where is her sister.

10                       On a -- on a fluke, Derrick had his

11   healthcare provider changed from one company to another.

12   They went to see a doctor.

13                       And he said, "I had a client named

14   Tanya James.   And it's ironic that your son -- nephew is

15   Derrick James."

16                       And Wylette Taylor says, "I've got a

17   sister named Tanya James.        Where is she?"

18                       And he says, "Well, she used to be with

19   Four J's on Beretta Court; but it caught on fire and she

20   died."

21                       And from there, Wylette Taylor started

22   a search, trying to find out what happened to her

23   sister.   And you're going to hear from her in terms of

24   what she found as she went over on Beretta Court.

25                       Two years later, the house is still



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 1   standing, still standing, clothing in it, the door's not

 2   secured, the windows open, just open to the world.

 3   People can come in and out, and they have been.              And she

 4   went up in there and found information about her sister.

 5                       And what we submit to you is that this

 6   corporation, Four J's, was derelict in its duties to

 7   Tanya James, Jenny Wagner, in addition to the property

 8   owner, Ms. Anthonia Uduma -- she owned that house.

 9                       And the law says that a property owner

10   has the duty to inspect and discover any known or

11   unknown dangerous conditions on the property and to fix

12   them or warn of their presence.

13                       That locked door was a dangerous

14   condition, and Ms. Uduma knew or should have known it

15   existed.   She had the authority and the ability to go in

16   and do an inspection.

17                       She owned it.      She leased it to her

18   company.   She -- she -- she had all her people there.

19   They knew it.    She had contractors come by, do work on

20   the property.

21                       They informed her of it; and she's

22   going to tell you, "I didn't know.           I did not know that

23   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."



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 1                       But we submit to you there's a concept

 2   called respondeat superior that says an individual's --

 3   who works for a company that does wrong that is

 4   negligent, the company is negligent, and we're going to

 5   prove that to you.

 6                       And we ask that you -- we ask that you

 7   consider the 23 hours that Tanya James suffered.              They

 8   found her in a bathtub gasping.          She had soot, she had

 9   carbon monoxide all in her lungs.          She didn't make it,

10   and -- but she suffered until she died.

11                       And of that, the law says an individual

12   has a right to a survivorship claim.           They can bring a

13   cause of action -- although dead, they can bring a cause

14   of action that they endured prior to their death; and

15   that cause of action survives them and can be brought

16   before a court of law by an heir.          That heir is

17   Derrick James.

18                       And Derrick is not in a position to be

19   here today because of his own special needs, but he's

20   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?

25



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 1                  DEFENDANTS' OPENING STATEMENT

 2                       MR. PLUMMER:      Counsel, ladies and

 3   gentlemen, I started off my voir dire examination to

 4   explain to you-all that this was -- this lawsuit arises

 5   out of a very tragic set of events that occurred back in

 6   September of 2008.

 7                       And I maintain that there's no other

 8   way to describe what happened to Jenny Wagner or what

 9   happened to Tanya James as other than tragic, and

10   there's no way to discuss that without being emotional

11   about it and without having feelings for what they went

12   through.

13                       Ms. Uduma, her staff, the entirety of

14   her staff, were -- were overwhelmed by what had happened

15   and stepped up to comfort the family as much as they

16   could -- the Wagner family as much as they could after

17   this tragic event.

18                       But the mere tragedy and the emotion of

19   that is not what this lawsuit is all about, and I

20   believe the evidence is going to clarify, rather than

21   the emotion and the argument that Counsel has made --

22   show the other side of what happened out there that

23   particular day and that particular night.

24                       Four J's Community Centers is an agency

25   that provides residential care for



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 1   developmentally-disabled individuals.            Most are mentally

 2   retarded.   Many have other kinds of disabilities.

 3                       It's regulated by the Texas Department

 4   of Mental Health, Mental Retardation.            It's regulated by

 5   the Department of Aging and Disabilities.               It is

 6   regulated by several other groups and agencies that are

 7   concerned about the well-being of the disabled in our

 8   society.

 9                       Years ago -- it's based upon a

10   philosophy that, to the extent we can, we want to bring

11   the disabled back into the community rather than

12   warehouse them in institutions, as they did in the olden

13   days -- bring them back into a residential setting as

14   much as possible and give them as much of a normal life

15   as possible and enhance their skills to the limits of

16   their abilities.

17                       And Four J's is a company that does

18   that for its clients and its consumers.

19                       Because it's regulated by these various

20   agencies, it has a litany of requirements and rules that

21   it has to comply with.       And you will see from the

22   evidence the way they attempt to comply with many of

23   these rules.

24                       There are, first of all, case managers

25   assigned to each individual consumer of Four J's.                   There



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 1   are supervisors who monitor what happens and what

 2   transpires at the various homes that Four J's operates.

 3                       There are individual safety plans for

 4   each individual consumer and client at their facilities.

 5   There are individual plans, development plans, for each

 6   client; and they have a detailed list of the physical

 7   and emotional needs of each of the patients and each --

 8   each of the clients.

 9                       Now, Four J's, as part of its

10   compliance with the regulatory compliance and as a

11   prudent business, has its own procedures that it follows

12   to train its staff to properly care for its folks.

13                       Those include in-service -- in-service

14   training sessions with staff, personnel.                Those include

15   conferences on a regular basis about the well-being of a

16   particular staff person's clients at the particular

17   homes; and they're all documented.           They're all

18   documented.

19                       It also includes complying with the

20   regulatory requirements of local agencies or State

21   agencies about the configuration of the home, whether

22   the home is suitable for the clients who come to the

23   homes and who have a variety of different kinds of

24   disabilities.

25                       The questions that you're going to be



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 1   asked to address at the end of this trial should be

 2   based upon the evidence that you hear rather than what I

 3   say as a lawyer or what Mr. Sparks says as a lawyer,

 4   as -- or what Mr. Thweatt says as a lawyer.

 5                       They're going to have to be answered

 6   based upon the evidence and the testimony that's

 7   credible that you hear.

 8                       Let me tell you what I understand from

 9   the facts occurred on the 4th of September, 2008.

10                       When -- after coming home from

11   attending the activity center at Four J's -- oh, by the

12   way, let me also digress a second.

13                       I think the other aspect of this trial

14   that you-all need to be aware of is that the emphasis on

15   what someone owns or what's -- how many homes that they

16   operate under this is a red herring and is a ruse.                 And

17   I think the evidence is going to show that, but don't be

18   carried away by that.      Look at what the evidence shows

19   about how this particular home was run.

20                       The evidence is going to show that the

21   house had at least three, if not four, exits for ingress

22   and egress in the event of an emergency.

23                       It's also going to show that the staff

24   was trained that in the event of a fire, you -- there's

25   a priority you apply to how you address and get the



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 1   clients out of the home or how you address and get the

 2   consumers out of the home, one of which was attend to

 3   the most vulnerable first.

 4                       It's also going to show -- and

 5   ironically, a few months before that, that there was a

 6   training session where Amuche, who was the caregiver

 7   that evening, that night, was counseled with and trained

 8   on and talked about what would you do in the event there

 9   was a fire and Jenny was in the house.            Okay?    What

10   would you do?

11                       And she was taught that if it -- you

12   know, obviously in an emergency situation, you don't

13   have time to lift her up or put her in her wheelchair or

14   put her in her overhead lift.         You get her down on the

15   floor, you put her on a blanket, and you drag her out;

16   or if -- if -- if that wasn't a possibility, you get her

17   down and you go out the window.          Ignore a minor injury.

18   Your goal is to protect Jenny.         That was the training

19   she was given, Amuche was given; and that was the

20   training other employees were given in circumstances

21   where you had someone with the level of disability of

22   somebody like Jenny.

23                       For somebody like Tanya James, who

24   was -- who could walk but needed guidance, you then take

25   them, lead them by the hand; and for the others who were



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 1   ambulatory and higher-functioning consumers, you would

 2   shout "fire, fire," and they would head out.

 3                       Now, that was the training; and it was

 4   just -- not just one time in June of 2008, but it was

 5   periodic.    It was also contained in the individual

 6   safety plan for Jenny, for Tanya, and for the other

 7   residents, something that was gone over on a regular

 8   basis.

 9                       Now, the real challenge -- the real

10   challenge that you-all as jurors are going to have is

11   going to be understanding that you can train somebody

12   regularly.   In fact, you can probably train somebody

13   every day; but you can't guarantee that they're going to

14   be able to -- to comply with that training if they panic

15   or collapse or faint or something of that sort.                And

16   that's what happened that night.

17                       Esperanza Arzola lit the bedroom on

18   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

20   having any kind of issues with fire.

21                       She was a troubled kid.             Many of the

22   kids in this environment have disabilities and -- and

23   problems -- perhaps none of the same nature of

24   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,

 2   had anything in there that indicated a problem with

 3   fire; but she started this fire.

 4                          And -- and after having gotten Arzola

 5   out of the house, rather than follow the procedure she

 6   had been taught, Amuche went and got Campbell out from

 7   the farthest part of the house where there was no fire

 8   at all.

 9                          I can't explain to you why she did

10   that.     I can tell you that Ms. Uduma and Four J's

11   trained her another way to do that, that that wasn't the

12   way she was trained to do it.

13                          So when you -- when you assess

14   responsibility, when you compare the responsibility of

15   the parties, you need to understand that there's a

16   distinction between how much a business or a corporation

17   can bring to bear on its employees in terms of training

18   and the expectation that they'll follow through on that

19   in an emergency situation.

20                          The evidence is also going to show

21   that -- and you'll be confronted with evidence that

22   addresses issues of credibility -- that is,

23   believability.

24                          You will hear different versions of

25   some of the things that occurred that evening.                 For



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 1   example, you will hear testimony by Amuche about what

 2   she did and what she didn't do or what training she had

 3   and what training she didn't have.           And you're going to

 4   be called upon to assess that credibility.

 5                       And I think the evidence is going to

 6   show that by the totality of the circumstances, the --

 7   and those circumstances include events that are -- that

 8   you see and hear in the courtroom but also events that

 9   you are told about from the witness stand about what's

10   happened.

11                       You can assess whether or not someone

12   is being credible and honest with you because that's

13   what you've got to decide the facts are in this case,

14   based upon credible testimony and credible evidence.

15                       You've heard some -- some statements

16   by -- by Mr. Sparks and Mr. Thweatt about the

17   circumstances of the house.

18                       I believe he said something about the

19   back door having a double-sided dead bolt -- it did --

20   that was blocked.     It wasn't.

21                       But you -- again, what I say and what

22   he says and what the other lawyers say is not evidence.

23   You-all have to decide.       You-all will have to listen to

24   it and make that decision from there.

25                       At the end of the testimony and the end



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 1   of the evidence, you're going to be asked to assess

 2   responsibility, and you're going to be asked to compare

 3   the conduct of various parties in this.

 4                       You're going to be asked to make

 5   judgments about what conduct, if any, was negligent and

 6   whose conduct was that that was negligent.

 7                       The Court will instruct you on that,

 8   the Court will give you written questions on that, and

 9   you'll have to make those decisions.           But it will be

10   based upon what you hear from this witness stand and the

11   documents that come into evidence.

12                       The tragedy of what happened in

13   September of '08 meant that, you know, Tanya James lost

14   her life and Jenny Wagner suffered so -- severe burns.

15   But that mere tragedy should not cause you to lose sight

16   of your obligation to the Court and the -- and the --

17   consistent with the oath you take to decide the issues

18   based upon the instructions the Court gives you and

19   decide this issue in this case fairly to all parties.

20                       With that, I am going to stop so that

21   we can get to the evidence and start telling you through

22   evidence what, in fact, happened.

23                       Thank you, ladies and gentlemen.

24                       THE COURT:     Mr. Thweatt, call your

25   first witness.



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 1                       MR. THWEATT:      Your Honor, we call my

 2   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

 6   the Rule, if possible.

 7                       THE COURT:     All right.      The Rule has

 8   been invoked.    The lawyers and witnesses are instructed

 9   that they are not to discuss the testimony of any

10   witnesses to any other witnesses until such witnesses

11   have been called.     The Rule exception applies to

12   parties, spouses of parties, and to any witnesses whose

13   presence in the courtroom are necessary for their own

14   testimony.

15                       Basically that means, witnesses, don't

16   talk to each other about your testimony until you've

17   been excused as a witness.

18                       You may proceed.

19                       All right.     Excuse me.      If you are a

20   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

23   permitted to stay in.

24                       THE COURT:     All right.      You may

25   proceed, Mr. Thweatt.



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 1

 2                                PATTI WAGNER,

 3   having been first duly sworn, testified as follows:

 4                             DIRECT EXAMINATION

 5   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,

12   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

22   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?



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 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

 5   Exhibit 1 for the record.

 6      Q.     (BY MR. THWEATT)         Has anyone lived together with

 7   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

18   him to me, married?

19      A.     We were married for -- we celebrated our 37th

20   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

24   children besides Jenny?

25      A.     We adopted our son in 1986.            He's 25.



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 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

 5   buddies in Katy.

 6      Q.     Your parents brought Jenny to the courthouse

 7   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

13   Mary Joan Fillebeck.

14      Q.     Have they had to come and travel down to your

15   apartment in Katy to help you with Jenny since the fire

16   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

22   assistant.

23      Q.      Where did you work?

24      A.     For a long time I was at Memorial Lutheran

25   School and Church as the administrative assistant.                    And



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 1   then after Bob died, I went back to work there as the

 2   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

 7   job.

 8      Q.     Would you tell the jury, please, Ms. Wagner,

 9   what mental and physical disabilities your daughter has.

10      A.     Jenny has been diagnosed with spastic cerebral

11   palsy, all four extremities, which means arms and legs

12   are involved; and she's unable to use them except for

13   her hand, with minor use left in it.

14                    She has severe to profound mental

15   retardation and optic nerve damage, which means her

16   vision -- she's legally blind because the optic nerves

17   were damaged at birth, which means that she can only see

18   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

22   people without disabilities can --

23      A.     No, sir.

24      Q.     -- have --

25      A.     I'm sorry.       No, sir.



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 1      Q.     Can you give the jury an example of the kinds of

 2   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

 5   choice:     "Are you hungry?"        "Yes."     "Do you want to -- a

 6   hamburger, or do you want a cheeseburger?"                 And she'll

 7   say, "cheeseburger."

 8                    If she means "yes," in some circumstances

 9   she'll repeat the question.           If she means "no," she does

10   say "no."

11                    Basically, she has more understanding than

12   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

17   palsy and the mental retardation, we found a center --

18   she was in a pilot program in Omaha, Nebraska, for

19   infant stimulation.         She was 18 months old.

20                    From there, she went to an integrated

21   preschool for a year on -- at a pilot program in

22   Bellevue, Nebraska.         And then she attended the

23   J. P. Lord School for the handicapped for preschool at

24   the same time.

25                    When she turned six -- pardon me.            When she



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 1   turned six, she attended a school for the physically and

 2   mentally handicapped children in Bellevue, Nebraska.

 3                    Later on, we moved down here to Houston --

 4   or to Dallas, and she was in school in Lewisville and in

 5   Dallas.     All of the classes were for the handicapped

 6   children.

 7                    She -- her final education down here, of

 8   course, was at Katy High School.             They had the special

 9   education classes there.

10      Q.     Let me show you another picture.                 This is

11   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

17   Exhibit Number 5.

18                    How old is Jenny in that photo; do you

19   remember?

20      A.     I think she's 17 or 18 in that one.

21      Q.     What kind of challenges, Ms. Wagner, did you

22   face raising Jenny as a child?

23      A.     Well, of course, physically, with the

24   handicap... Jenny is severely multiply-handicapped, of

25   course; and so there's basically absolutely nothing she



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 1   can do for herself except to feed herself finger foods.

 2                    And so, consequently, any movement that

 3   you -- if -- to move from room to room or place to

 4   place, someone else always has to do that.

 5                    Educationally, you know, we missed all of

 6   the milestones -- no long division at eight, no driving

 7   a car, those kinds of things that are natural

 8   milestones.

 9                    And socially, especially as she got older

10   and we moved away from Nebraska, where my family lived,

11   it limited how much time outside the home that Bob and I

12   could spend together because even with our -- our son

13   there, especially after we adopted him, one would have

14   to be with Jenny at all times and then the other would

15   be able to go and do things with our son -- Little

16   League, T ball, those kinds of things.

17                    And so those last years, I think, Bob and I

18   had one vacation.        It was an overnight stay.

19      Q.      Did Jenny ultimately graduate from high school

20   at Katy?

21      A.      They say "graduate," but basically you're aged

22   out.

23                    The State of Texas allows a child to go to a

24   public school until the year they turn 22.                 Jenny was 22

25   on January 8th, 1995.         Pardon me.      And so her last



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 1   official school day would have been sometime that May

 2   of 1995.

 3      Q.      And as I've described to the jury, Jenny then

 4   went to live at a facility called The Willows; is that

 5   correct?

 6      A.      She went to live at The Willows in August of

 7   '95.

 8      Q.      And can you describe for the jury the decision

 9   process that you and your husband went through in order

10   to place her in that facility and whether -- all the

11   things you considered to do that.

12      A.      Yeah.

13                    When Jenny was first diagnosed, we were told

14   to take her home and decide what we were going to do

15   with her.

16                    That's when we looked around, and we found

17   programs that we could get for her to -- to help her

18   and -- and get developmental -- her developmental needs

19   expanded.

20                    About the time she turned 16, then the

21   question is have you thought what are you going to do

22   with her if you're no longer there to take care of her.

23   And so basically you start looking around and trying to

24   find out what the next step is.

25                    If you're fortunate, you have family that



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 1   are able, besides being willing, to step in and -- and

 2   become the second set of parents; and sometimes you

 3   don't.

 4                       So Bob and I made the decision that Jenny's

 5   handicaps were so profound that she -- we had to look

 6   for some place for long-term care.

 7         Q.     And how long did Jenny remain at The Willows

 8   facility when she moved in in 1995?

 9         A.     Jenny was at The Willows from 1995 until we

10   moved her to the Four J's house in 2002.

11         Q.     And how did you come to select Four J's in 2002

12   for Jenny?

13         A.     When Jenny was in high school, we put Jenny on

14   waiting lists to -- for services.                And one of the

15   waiting lists that you can put them on is HCS, which is

16   Home and Community Services.

17                       In 2002 we received a call from Texana,

18   which is the Fort Bend County oversight, people who look

19   over and place -- help place people in Jenny's

20   situation.         I guess that's the best way I can explain

21   it.

22                       Anyway, they called us and said, "We have a

23   group home available.            We have a company that has a

24   group home available, and are you interested in -- in

25   moving Jenny?"



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 1                    One of the things we knew not to do was ever

 2   take her off the waiting list because Jenny was living

 3   in San Antonio and we wanted her closer to home.                 By

 4   then, my husband was traveling.             He was a contract

 5   computer expert.        And it was fly in on Friday night,

 6   drive to San Antonio on Saturday, and fly out on Sunday.

 7                    So we jumped at the chance that we could

 8   move Jenny closer to home.

 9      Q.     And ultimately Jenny came to live at 16335

10   Beretta Court in Missouri City, correct?

11      A.     That's correct.

12      Q.     All right.      How many other residents with mental

13   disabilities were in the home, that you remember, when

14   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

19   while she was at the Beretta Court house?

20      A.     Yes, sir.

21      Q.     And can you describe some of those visits for

22   the jury, with detail?

23      A.     Usually they were day visits, or on holidays we

24   would pick her up and bring her back to the house.                    My

25   husband was still traveling, and so we would pick her up



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 1   on Saturdays and generally go out to the mall.

 2                    At the time Jenny had a wheelchair that

 3   didn't collapse; and so consequently, there was no way

 4   to use her chair that she was using at The Willows -- I

 5   mean, pardon me -- at Four J's in our car.                 So we bought

 6   a travel chair.

 7                    And unfortunately, the travel chair is not

 8   very uncomfortable [sic] for an extended period of time.

 9   So our visits usually, when we went to the mall, would

10   last between two and four hours, depending on how Jenny

11   was -- was -- how comfortable she was; and then we would

12   take her back to the house.

13      Q.     Ms. Wagner, during the holidays, did you and

14   your husband ever have occasion to bring Christmas

15   presents to Jenny there at the house or to other

16   residents?

17      A.     Yes, sir.

18      Q.     Do you remember ever meeting Tanya James at the

19   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

24   September the 4th, 2008, Ms. Wagner.

25      A.     Yes, sir.



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 1      Q.      How did you first become aware that your

 2   daughter had been burned in that fire?

 3      A.      On the morning of 2000 -- or on the morning of

 4   September 5th, I had gone to work.              It was about 7:30 in

 5   the morning.      I had gone in to the workroom to make

 6   coffee.     I was the secretary at Memorial Lutheran

 7   Church.

 8                    I came back to my desk, and there was a

 9   message on my cell phone.           It was from Ngozi Obichuku,

10   who was Jenny's case manager.            The message basically

11   said, "Ms. Wagner, I just want you to know Jenny's

12   alive.     She's at Hermann -- or Memorial Hermann Hospital

13   in the burn unit."

14                    Once I heard that, I called my sister and

15   told her what -- what was said.

16                    And she -- she says, "Okay.           Get the

17   pastor."

18                    And so... I'm sorry.

19      Q.      Did you go to the hospital then with your sister

20   and the pastor?

21      A.      My sister and the pastor decided that the pastor

22   would drive me to the hospital and Joanie would meet me

23   there.     Joanie was in Katy at the time, and we were

24   working down by the Galleria -- I was working down by

25   the Galleria.       So Pastor St-Onge, from the church, drove



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 1   me to the hospital.

 2      Q.     Would you tell the jury what you saw when you

 3   first came into Jenny's room at Memorial Hermann

 4   Hospital on September 5th, 2008?

 5      A.     Jenny was already in the burn ICU upstairs.                 She

 6   was laying on the hospital bed.             It was propped up.        She

 7   had bandages that went around her head and covered the

 8   whole side of her -- her face and her neck.                Her arms

 9   and hands were -- were completely bandaged on both arms

10   and hands, and she had bandages around her chest.

11                    She had an I.V. in her groin, and she had a

12   respirator that -- that she was breathing from.                 There

13   was a tube coming out of her that was connected to some

14   kind of vacuum pump, and it was pumping the lining of

15   her lungs out.       There was blood and black soot that was

16   pumping this out.

17                    She was connected to a heart monitor, and it

18   was monitoring her oxygen level on her finger.                 She

19   was -- there was something else, the heart monitor,

20   and -- and a blood pressure cuff on her -- on her ankle.

21      Q.     How long did Jenny remain in the hospital,

22   Memorial Hermann?

23      A.      Jenny was released from the hospital on

24   October 2nd.

25      Q.     Did you ever have a thought while you were there



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 1   at the hospital whether your daughter was going to

 2   survive, Ms. Wagner?

 3      A.      The first week, that's the first question I

 4   would ask.      And then after the first week, it was, "When

 5   can I bring her home?"

 6      Q.      What kind of medication do you recall Jenny

 7   receiving for treatment of her burn injuries at Memorial

 8   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

13   in the hospital to tell you how she was feeling and

14   specifically whether she was in pain?

15      A.      Not for the first two weeks.            She had the

16   respirator; and they were keeping her, I think,

17   unconscious.

18      Q.      Can you tell the jury what you saw at Memorial

19   Hermann Hospital with regard to the care and treatment

20   of Jenny's burn injuries?

21      A.      They allow the family to come in periodically

22   throughout the day.         In the evening, they -- they tell

23   the family, "You might as well go home" because that's

24   when they do the debridement.            That's when they scrape

25   the dead skin off from the burns; and they don't want



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 1   family around, I guess.          You can wait in the waiting

 2   room, but... until the next visiting time.

 3                    What -- what they have to do -- twice a day

 4   they would close down the center when they would -- they

 5   would remove bandages and -- and clean the wounds and

 6   then replace bandages.

 7      Q.     Did you ever hear Jenny scream when that

 8   happened?

 9      A.     Not Jenny.      We were never in there when they

10   replaced her bandages.

11      Q.     During your daughter's nearly month-long

12   hospitalization, were you able to see with your own eyes

13   the way Jenny was responding to the treatment, whether

14   or not she was in pain?

15      A.     They explained about watching the -- the heart

16   monitor and -- and the respirating monitor, and you

17   could see the different levels.             That's -- that's how

18   they would monitor and gauge pain for people who are

19   unconscious.

20                    Later on, once they took out the respiratory

21   tube and the feeding tube and they started giving her

22   her food by mouth, we could hear Jenny grinding her

23   teeth.    And that always was an indication that she was

24   very uncomfortable and in pain in some way.

25      Q.      When Jenny was finally discharged on October the



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 1   2nd, 2008, where did you take her?

 2      A.      I took her back home to my apartment.              I was

 3   living in a one-bedroom apartment at the same complex at

 4   that time.

 5      Q.      So you had to move and get a bigger place; is

 6   that right?

 7      A.      After a year.      I had to wait for a two-bedroom

 8   handicap apartment to open up if I wanted to stay in the

 9   complex.

10      Q.      Can you describe for the jury, Ms. Wagner, the

11   kind of care that you provided to your daughter once you

12   got her home to your apartment in Katy?

13      A.      Basically, we had to learn how to do the bandage

14   changes.     We had to administer her -- her medication,

15   make sure everything was cleaned and sterile; and then,

16   of course, had to change her diapers and give her sponge

17   baths.

18      Q.      Did your daughter have skin graft surgeries

19   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,

23   seven stripes on her thighs where they removed the skin

24   to make the skin grafts.          I'm not sure exactly how often

25   or how much they could use at a time.



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 1      Q.     Do you know with -- after they removed the

 2   strips of skin from her thighs, do you know where those

 3   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,

 7   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

10   (indicating) and here (indicating), on her knuckles and

11   wrists over here (indicating).            On her left arm they cut

12   the burn out over here (indicating), and -- and they

13   were able to staple that closed.             But then down here

14   (indicating), she had skin grafts.              And on here

15   (indicating), they -- they had skin grafts on her

16   knuckles here (indicating) they were worried about

17   wouldn't take because the bones had -- were showing.                     Of

18   course, there's not a lot of muscle or fat there.                     So we

19   had to be very careful about those skin grafts.

20                    Across her stomach, they were able to staple

21   some of the burned -- after they excised it, they were

22   able to staple some of that; but there was a section

23   over here (indicating) that was skin graft.

24                    And then on her -- I'm sorry; I got

25   confused.     It's her -- her right breast that has the



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 1   skin graft; and the left breast, there's a -- an

 2   incision about that long (indicating) where they cut the

 3   burn out.

 4      Q.     Ms. Wagner, I want to show you and the jury some

 5   photos from Plaintiff's Exhibit Number 29 that were

 6   taken at a facility called EdiCare Professional --

 7   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

12   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

19   little bit about the kind of wound care that EdiCare was

20   providing to Jenny as of October the 4th, 2008.

21                    Do you remember what EdiCare was doing for

22   your daughter?

23      A.     Yes, sir.

24                    EdiCare supplied a visiting nurse that came

25   in once a day to do the morning skin grafts and to



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 1   monitor her vital signs and conditions so that, you

 2   know, in case something had gone wrong in the next --

 3   you know, the prior 24 hours, we would know.

 4                    And in -- in doing that, the morning -- the

 5   morning shift change was usually done -- or the morning

 6   dressing change was usually done by the nurse from

 7   EdiCare, and my sister Joan and then my mother and I did

 8   the after -- the evening.

 9      Q.      Okay.    We just saw Jenny's legs as of October

10   the 4th, 2008.

11                    I want to show you another photo from

12   Plaintiff's Exhibit 29 taken by EdiCare.                   Is this

13   (indicating) your daughter's stomach?

14      A.      Yes, sir.

15      Q.      And does this photo indicate that there are

16   staples or stitches in your daughter's stomach?

17      A.      There's staples.

18      Q.      How long were those staples removed, or were

19   they in until they were removed?

20      A.      The staples -- the following week.                We had to

21   take Jenny to the burn doctor's office, Dr. Wainwright's

22   office.     And I believe... maybe it was two weeks -- a

23   week or two later that they finally removed all the

24   staples.

25      Q.      Later in that same --



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 1      A.     Later in the -- in October.

 2      Q.     Okay.     Later in that same exhibit underneath

 3   that picture is a picture -- is that a picture of your

 4   daughter's chest as it was reflected on October the 4th,

 5   2008?

 6      A.     Yes, sir.

 7      Q.     And are those also staples that we see there,

 8   that you saw?

 9      A.     Yes, sir.

10      Q.     Okay.     Show you another picture from Plaintiff's

11   Exhibit 29 taken on October the 4th, 2008.

12                    That appears to be your daughter's arms; is

13   that correct?

14      A.     Yeah.     I think that must be -- where's the

15   thumb?    Yeah.     I think -- is that the right arm?            I'm

16   looking for the thumb, the top one.              The bottom one is

17   her other arm and hand.          That must be left.

18      Q.     And you and your sister would change Jenny's

19   bandages?

20      A.     And my mother, yes.

21      Q.     How long did your mother travel down from

22   Nebraska?     How long did she stay to help you?

23      A.     They stayed through the beginning of February.

24      Q.     2009?

25      A.     Yes.



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 1      Q.     Let me show you a picture that was also taken by

 2   EdiCare appearing in Plaintiff's Exhibit 29, taken in

 3   November, 2008, bottom one there.

 4                    Is that your daughter's neck and side of her

 5   face and her ear?

 6      A.     Yes, sir.

 7      Q.     I want to ask you, Ms. Wagner:             When you first

 8   saw how your daughter's neck and the side of her face

 9   and her hand was burned, what perception did you have

10   with relation to how she was positioned in the fire?

11      A.     When they first took the bandages off her face,

12   which was before other bandages -- this was still at the

13   hospital -- my mom and I had come in.               Usually two of us

14   went in together to visit Jenny.

15                    And my mom and I had come in.             And we

16   were -- we were looking at her face, and -- and we

17   could -- it looked like you could see her hand print

18   over her -- her face.         This side of her face

19   (indicating) was what was burned, and this side

20   (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?



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 1      A.     Yes, sir.

 2                          MR. THWEATT:      Your Honor, with the

 3   Court's permission, I'd like to have Jenny Wagner come

 4   into the courtroom now.

 5                          May I retrieve her?

 6                          THE COURT:      Yes.

 7                          (Jenny Wagner comes into the

 8   courtroom.)

 9                          MR. THWEATT:      All right.        Thank you,

10   sir.

11      Q.     (BY MR. THWEATT)         Patti, is this your father?

12      A.     Yes, sir.

13                          MR. THWEATT:      Okay.     Your Honor, I'd

14   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

18   as you can, I'd like you to show the jury the current

19   state of Jenny's scarring from this fire.                  Okay?

20      A.     All right.

21                          PATTI WAGNER:       Jenny, hold your head up

22   one second.

23      A.     Face scars are hard to -- to get soft and to

24   eliminate easily, and they sometimes have keloids; and

25   it's -- it's tissue, basically.



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 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

 5   have to be very careful about pressure on that ear a

 6   lot.    And -- and then her eyelid here, over here

 7   (indicating), was burned.

 8      Q.     (BY MR. THWEATT)         What kind of care do you

 9   provide daily to make sure that pressure and agitation

10   does not occur?

11      A.     She's massaged and -- and lubricated every time

12   we change her diapers.          Okay.    This is her right arm --

13                          PATTI WAGNER:       Sweetheart, I need your

14   arm.    Thank you, Darling.

15      A.     This is where the grafting was taken here and

16   here and on her wrist and her knuckles here

17   (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

21   you.

22      A.     The knuckles here (indicating) were where they

23   had grafted.      She's not going to let me...

24      Q.     (BY MR. THWEATT)         That's on her left one?

25      A.     Yeah.



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 1                          PATTI WAGNER:       That's okay.       That's all

 2   right.

 3                          MR. THWEATT:      All right.        Mr. Wagner,

 4   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

 9   daughter's medical record that's been previously

10   admitted as Plaintiff's Exhibit Number 29.

11                    You mentioned a Dr. Wainwright at Memorial

12   Hermann Hospital; is that right?

13      A.     Yes, sir.

14      Q.     And as I understand it, he was Jenny's primary

15   burn physician; is that correct?

16      A.     That's correct.

17      Q.     Okay.     Talk to you about a note from Memorial

18   Hermann's home burn care plan.

19                    It says "Medications" there.              Can you read

20   that, Ms. Wagner?

21      A.     Yes.     It's Vicodin.

22      Q.     Okay.     (Reading) One to two tabs as needed for

23   pain.

24                    Was Jenny -- when she got home to your care,

25   was she taking Vicodin to address pain?



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 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

 6   weeks, at least, and then maybe every six hours

 7   thereafter.

 8      Q.      When did you administer -- you said every four

 9   hours, but is there a timing in particular during the

10   day when you change bandages and that kind of thing when

11   it's particularly important?

12      A.      The morning bandage change was always done

13   for -- by my sister, of course, and the nurse from

14   EdiCare.

15                    Heidi would call, and we would administer

16   the -- when she was a half an hour from our home, and we

17   would administer the Vicodin then to make sure that she

18   was well medicated before they did the change.

19      Q.      Now, at some point Jenny had to stop taking

20   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

23   physically?

24      A.      She had severe hot flashes.           She -- her body

25   would become drenched, and she wouldn't sleep.                 She



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 1   would be restless.        And Jenny doesn't cry; she grinds

 2   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

 7   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,

13   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

19   describe what we see in Plaintiff's Exhibit 24, please?

20      A.     There's a -- a quilted pad that you see just on

21   top of the sheet.        Underneath that quilted pad, we have

22   a -- a pillow to help her bottom, to keep from getting

23   bed sores.

24                    On top of the quilted pad is a waterproof

25   throwaway pad to protect from urine on -- on the chair.



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 1   On the top -- on the back of the chair is the -- I think

 2   that is the pink blanket.

 3                    We have several blankets that we put next to

 4   this side (indicating) of her head to cushion the ear

 5   and to help keep her head more in alignment when she

 6   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

10   the top... the bag contains wipes that we use when we

11   wipe her bottom.        Cetaphil is the cream that I use on

12   her burns to massage them and to keep them supple so

13   that they don't dry out and split open.

14                    Behind that is Vaseline that we put on her

15   bottom, a spray bottle of bleach, and some baby powder.

16   Underneath that, more wipes and Kleenexes and the green

17   pads I was telling you about before.

18                    In the drawers are heavier pads that I put

19   in her pants when she's going to be home -- a long time

20   from home, an hour or two; and then at the bottom are, I

21   guess you would call them, adult pull-ups, instead of

22   diapers now.      We use those.

23      Q.     Ms. Wagner, how long was it until Jenny was

24   finally released from medical care for the treatment of

25   her burn injuries?



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 1      A.     We saw Dr. Wainwright for the last time toward

 2   the end of February.         I think it was around the 23rd

 3   of --

 4      Q.     Of 2009?

 5      A.     -- of 2009.

 6      Q.     How -- how do you transport Jenny?               If you have

 7   to get her to an appointment or something like that, how

 8   do you do that?

 9      A.     I have a collapsable wheelchair, but -- that I

10   can take apart and put in -- fold up and put in the

11   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

19   you'll have the physical ability to lift Jenny for the

20   foreseeable future?

21      A.     Yes.    I thank God every morning when I get up

22   that I still have a strong back.

23      Q.     Ms. Wagner, you understand that as a result of

24   Jenny's care for the treatment of her burns, Memorial

25   Hermann and UT physicians, where Dr. Wainwright works,



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 1   and various other medical providers incurred -- or sent

 2   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,

 6   which is just a summary.

 7                    Now, can you see there the total,

 8   $91,553.98?

 9      A.     Yes, sir.

10      Q.     Is that your understanding of what has been

11   incurred for Jenny's medical care as a result of these

12   injuries?

13      A.     For the burns, yes, sir.

14      Q.     And there's a -- part of that -- most of it is

15   fee for services because there's prescriptions, as well,

16   and about $1,081.12.         Is that for the Vicodin and

17   materials you had to purchase afterwards to treat her

18   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

23   Anthonia Uduma is.

24      A.     Yes, sir.

25      Q.     Do you understand her to be the president and



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 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

 4   after your daughter was burned to talk to you about what

 5   had happened in this fire?

 6      A.     I think so.       I think she just called to say --

 7   ask how we -- yeah.         I think there was one time.          I

 8   think so.     I --

 9      Q.     Did she ever apologize to you for what had

10   happened to your daughter?

11      A.      No.

12      Q.     Do you understand that Ms. Uduma and her company

13   have blamed Esperanza Arzola solely for this fire?                    Do

14   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

18   who has all the problems that Esperanza seemed to have

19   had.    I don't think she was mentally competent in being

20   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.



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 1                             DIRECT EXAMINATION

 2   BY MR. SPARKS:

 3      Q.      Good afternoon, Ms. Wagner.

 4      A.      Good afternoon.

 5      Q.      When you were summoned to the hospital, Memorial

 6   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

11   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

14   about Tanya?

15      A.      Yes, sir, I did.        I asked, and I -- and I went

16   to her room.      I wasn't allowed to go in, but I could see

17   her from the doorway.

18      Q.      And describe to the jury what you saw in terms

19   of Tanya.

20      A.      You couldn't see much of Tanya.            Tanya was

21   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

24   to -- took Jenny to Beretta Court, that that was the

25   first time you had met Tanya James; is that correct?



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 1      A.     Uh-huh.      Well, the day we visited Beretta Court,

 2   my husband and I, Jenny was still at The Willows; but we

 3   met with Ms. Uduma and the current case manager at that

 4   time, Ms. Wilson.        And they took us to Beretta Court to

 5   see the house before we made the final decision.

 6                    And at that time, we met Tanya and another

 7   housemate who was living there.

 8      Q.     Were you ever made aware that Jenny and Tanya

 9   had a special bond together?

10      A.     They were original roommates of Jenny's.               She

11   and the other young woman who was there at that time

12   were her original roommates, yes.

13                    And my understanding is that their bedrooms

14   were right down in the same hallway, next to each other.

15      Q.     And were you of the opinion that during that

16   time period before Esperanza Arzola arrived on the scene

17   that there was peace and harmony at that home?

18      A.     Yeah.     Bob and I would pick up Jenny on

19   Saturdays, like I said, or on holidays to bring her home

20   on holidays; but, you know, on Saturdays we would do our

21   mall walk.

22                    Part of our routine was to pick up cookies

23   to take to Tanya and -- and Delores, the other roommate

24   at that time -- and bring them cookies.               And Tanya and

25   Delores would be sitting on the couch, and Jenny would



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 1   be in her wheelchair next to them.

 2                    We would call ahead so that they would be

 3   able to change Jenny to new diapers and have her ready

 4   for us to take out.

 5                    And Delores would stand up and hug Bob and

 6   always say, "Jenny's daddy" and -- and "cookies."                     And

 7   Tanya would come and -- and take the cookies and put

 8   them on the table.

 9                    And the first year we brought Christmas

10   presents for Tanya and Delores and a Christmas tree for

11   their house, and -- and they were excited because they

12   had presents and something to open.              And, in fact, we

13   were -- we were wondering if they were going to let them

14   open them or how long they would last under the tree.

15   But, yes, it was a quiet atmosphere when we would pick

16   Jenny up.

17      Q.     Now, during the time period after 2005 when

18   Ms. Esperanza Arzola arrived on the scene, you were

19   still Jenny's guardian, were you not?

20      A.     I've been her guardian since we legally had to

21   be, yes, sir.

22      Q.     And would it be safe to say that you had a -- I

23   may not be putting it in the right words, and please

24   correct me if I'm wrong -- you had a yearly staffing or

25   update or some type of review --



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 1      A.     Yes, sir.

 2      Q.     -- if you would, regarding Jenny's stay at the

 3   Beretta Court facility?

 4      A.     That is correct.

 5      Q.     All right.      And at any point in time when you --

 6   who would you have that staffing meeting with?                 Let me

 7   ask that question, first.

 8      A.      Generally, the case manager, whoever was the

 9   current case manager at that time for Jenny.                Myself; if

10   my husband was in town, he would be there, too; also,

11   the person in charge of the day hab at that time; and

12   then also there would be a report from the nurse on

13   staff at the day hab facility.

14      Q.     Did -- did you ever have an occasion, ma'am, to

15   go visit the day hab?

16      A.     We've picked up Jenny at the day hab a couple of

17   times.

18      Q.     What was your impression of it?

19      A.     There were two, and I don't remember what year

20   they changed over.

21                    The -- the first year that -- or the first

22   two years, maybe, that they were at the -- Jenny was at

23   Beretta Court, Four J's had another building that was

24   close to -- oh, I got my B's mixed up.               It was in a

25   different area than the one -- it was closer to the



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 1   Galleria area.       I can't remember which street it was on.

 2                    But anyway, I would go there on Wednesdays

 3   to take Jenny out to lunch and pick her up at that day

 4   hab.

 5                    After a couple of years, they moved to

 6   another facility, which was larger and had more rooms.

 7   It had a courtyard in the middle of it and parking lots

 8   on either side of it.

 9                    I -- they would bring Jenny to me.              I never

10   actually went inside the rooms.

11      Q.      So you never really had an occasion to go in and

12   see what activity was taking place?

13      A.      Not at the actual day hab there.                I could see

14   some of the clients in the courtyard.

15      Q.      Would they just be milling around or was there

16   an apparent degree of instruction being given or what

17   was your assessment on what Jenny was doing?

18      A.      My understanding was that it was time to be

19   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

25   review that you had with the case worker for Jenny and



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 1   the individual from the -- the day hab?

 2      A.     At an annual review, they go over the plans for

 3   the coming year on educational goals, physical goals.

 4   They review her physical condition and -- and get input

 5   from the parent on -- or guardian on what we would like

 6   to see happen.

 7      Q.      Was there ever an occasion where you were either

 8   verbally or in writing given information that assured

 9   you that the safety of Jenny was paramount to the people

10   at Four J's as she existed at the 16335 Beretta Court

11   facility and when she also went to the day hab facility?

12      A.     I'm not sure about anything specific to the day

13   hab.    I -- I guess I never asked or was -- you know,

14   it -- it was an assumption.

15      Q.     Okay.

16      A.     As for the house, I know that there was

17   paperwork that we received when we moved Jenny into it;

18   and I think that part of it was a promise on their part

19   to ensure the safety and well-being of Jenny, yes.

20      Q.     Now, did -- at any point in time during these

21   annual reviews, did Ms. Anthonia Uduma or anybody else

22   from Four J's share with you that there was an

23   individual named Esperanza Arzola who had taken up

24   residency there?

25      A.     No.     I don't -- I didn't -- I didn't recognize



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 1   the name.     I cannot say that they did not tell Bob.                I

 2   don't know.

 3      Q.      Were you ever made aware, ma'am, that there was

 4   an individual at the facility who had moved in who was

 5   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

13   personal information, and that can't be shared with --

14   with us.     That's why we had to rely on them to place

15   clients in the home with Jenny who are compatible with

16   us and Tanya's special needs.

17      Q.      So it was your understanding, then, that the

18   individuals at Four J's, when they were coupling up or

19   quadding up the individuals in the home, were trying to

20   take into consideration -- or you thought they were

21   taking into consideration people who would be compatible

22   with the needs of Jenny, the needs of Tanya, and their

23   personalities?

24      A.      That definitely happened at first, because Tanya

25   and Delores and Jenny were placed together.



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 1      Q.     So you were never made aware that somebody who

 2   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

 5   [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

 8   padlock on the back door to try to keep her from leaving

 9   the facility?

10      A.     No.    I can't honestly say that I looked at the

11   door myself and saw a padlock.            I didn't pay attention

12   to -- it's a sliding glass door.             I never really looked

13   at it; so I don't know when a padlock was placed on it.

14                    But I certainly was never told that a

15   padlock was necessary because of another client in the

16   house.    We wouldn't have left Jenny there.

17                          MR. SPARKS:      No further questions,

18   Judge.    I pass the witness.

19                          THE COURT:     Mr. Plummer?

20                          MR. PLUMMER:      Thank you, Your Honor.

21                             CROSS-EXAMINATION

22   BY MR. PLUMMER:

23      Q.     Ms. Wagner, let me understand this:              Mr. Sparks

24   asked you were you ever told if there was a padlock on

25   the back door.       And I think you indicated you never



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 1   recall being told that; is that right?

 2      A.     Yes, sir.

 3      Q.     And, in fact, there was no padlock on the back

 4   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

 8   door, either.

 9      Q.     Okay.     All right.      Did you say, also, that there

10   was a sliding back door --

11      A.     I think -- pardon me.

12      Q.     Did you say there was a sliding back door in the

13   back of the house?

14      A.     I thought it was.

15      Q.     Okay.     There was a photograph up -- we had it up

16   earlier -- of your cart.

17      A.     Yes.

18      Q.     Do you recall that?

19                    And I think that was the place where you

20   kept at hand those things you needed to care for Jenny;

21   is that right?

22      A.     That is correct.

23      Q.     It's convenient?        I mean, obviously it's a

24   burden and a responsibility, trying to take care of her

25   all during the day and the evenings; is that right?



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 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

 5   some other kind of salve that you put on her cheek to

 6   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

11   other care that you were providing that is demonstrated

12   on the cart that results directly from the burn injuries

13   she suffered as opposed to her condition?

14      A.     No.

15      Q.     Now, Mr. Sparks has asked you about an annual

16   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

21   annual?

22      A.     Annual.

23      Q.     Okay.      And you participate -- you participated

24   in it and, when your husband was alive, he participated,

25   also; is that right?



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 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

 4   attend in person, you attended the conference of

 5   staffing by phone; is that right?

 6      A.     Yes.

 7      Q.     Okay.     And usually those staffings were

 8   documented?

 9      A.     Eventually.

10      Q.     Okay.     And did they also include a fairly

11   detailed assessment of Jenny's current status and -- and

12   what her future needs are, what your desires were toward

13   her development, and things of that sort?

14      A.     Eventually.

15      Q.      Okay.

16      A.     A document was created after the staffing where

17   the case manager would go back and type up all the notes

18   that were taken during the staffing, and then she would

19   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

23   memoranda?

24      A.     Yes.     Yeah, usually.

25      Q.     Okay.     And did it also contain her -- Jenny's



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 1   individual emergency plan and planning with regard to

 2   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

 6   you mean what would -- they were supposed to do in case

 7   of a -- no.

 8      Q.     Okay.     Okay.

 9                    At any point in time before the fire, did

10   you complain about the care Jenny was getting in your

11   annual plan?

12      A.     No.

13      Q.     Is it fair to say we can assume, then, that from

14   what you observed and saw, Jenny was getting good care?

15      A.     From what I would -- observed and saw and was

16   told, yes.

17      Q.     Okay.     Okay.

18                    Now, your -- one of your principal contacts

19   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

25   sorry.    I just went blank.         Ms. Obichuku.



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 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

 6   touch with you, relay information about Jenny.

 7                    And how else would she carry on her case

 8   management functions vis-à-vis information to you?

 9      A.     She would call me if something came up and she

10   needed to speak to me about it.

11      Q.     Okay.

12      A.     Other than that, she would -- we would have our

13   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

18   of the 5th?

19      A.     Yes, sir.

20      Q.     Okay.     And did she tell you that there had been

21   a fire at the house or did she just tell you Jenny was

22   in the burn unit?

23      A.     She said they were -- there was a fire at the

24   house and Jenny was taken to Memorial Hermann and she

25   was in the burn unit there.



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 1         Q.     At that time did she tell you what she thought

 2   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

 5   Ms. Obichuku, did she tell you how the fire was caused?

 6         A.     Not on a phone call, no.           We saw each other at

 7   the hospital the same day.

 8         Q.     And you subsequently discovered that the fire

 9   was started by a -- another client, Ms. Arzola, right?

10         A.      Yes.   Ms. Obichuku had told me that at the

11   hospital.

12         Q.     Okay.     And that she had started it in her

13   bedroom; is that correct?

14         A.     I don't believe she told me where she started

15   it.

16         Q.     Was it your understanding that Ms. Arzola had

17   been injured or not injured in the fire, or did you have

18   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

22   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

25   true, yes.



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 1      Q.      Okay.     Now, the -- the caregiver who was at the

 2   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

 9   that night or the next day at the hospital?

10      A.      Oh, no.

11      Q.      Okay.     Now, at some point in time, Ms. Wagner,

12   you sued Amuche Udemezue in this lawsuit; is that

13   correct?

14                          MR. THWEATT:       Your Honor, I object to

15   relevance.

16                          THE COURT:     Overruled.

17                          Answer the question.

18      A.      I believe at -- maybe the very first document

19   had her name on it.         I don't -- I don't know.

20      Q.      (BY MR. PLUMMER)       Okay.     So you don't recall

21   exactly when you sued Ms. Udemezue as one of the

22   responsible parties in this matter?

23      A.      There was never a -- a court trial.             It was all

24   part of this case that we're doing today.

25      Q.      I understand.



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 1                    And as part of this case that we're doing

 2   today, when you filed the lawsuit, had -- and if you

 3   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

 6   lawyers filed suit against Amuche Udemezue in addition

 7   to Ms. Uduma, Mr. Uduma, and Four J's?

 8      A.     I believe that was on the first court document

 9   that was filed.

10      Q.     Okay.      Okay.    Okay.   And the reason she was

11   included in that is because you-all thought she was the

12   responsible party in this; is that right?

13                          MR. THWEATT:      Objection, Your Honor, it

14   calls for speculation and calls for invasion of the

15   attorney/client privilege, and relevance.

16                          THE COURT:     Sustained.

17                          MR. PLUMMER:      We'll move on, Your

18   Honor.

19      Q.     (BY MR. PLUMMER)        I believe Mr. Sparks asked you

20   some questions about Arzola, Ms. Arzola, and whether or

21   not you'd ever been told that she would be coming into

22   the home.

23                    Do you remember that?

24      A.     Well, yeah.        Just a few minutes ago he asked

25   questions about her.



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 1         Q.     Right.

 2                       And in -- in -- I believe you said that that

 3   had not -- nobody had told you she would be coming in

 4   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

 7   new roommate coming in when Arzola came in; is that

 8   right?

 9                       Well, let me approach --

10         A.     Yeah.

11                             MR. PLUMMER:      May I approach, Your

12   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

17   marked as Defendant's Exhibit 36 and ask if you would

18   take a second and look at that and tell me whether you

19   can recognize that document.

20         A.     (Complying.)

21         Q.     And tell me whether you can recognize your

22   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

25   it?    Or what is it called, an Interim Individual Service



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 1   Plan?

 2      A.     Yes, sir.

 3      Q.     And informing you about the new roommate that

 4   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

10   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

14   option to say yes or no to the new roommate coming in;

15   is that correct?

16      A.     That probably is true.

17      Q.     And if you said yes, the roommate comes in; if

18   you said no, the roommate doesn't come in?                 Is that

19   right?

20      A.     I don't know.        I probably -- if I was ever asked

21   yes or no -- I knew I was informed, but I don't know if

22   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



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 1   that.

 2      A.     Uh-huh.

 3      Q.     Now -- now for eight or nine months after the --

 4   after Jenny -- Jenny was hurt in the fire and got out of

 5   the hospital, who did you have as the caregiver for

 6   Jenny?

 7      A.      Myself for the primary caregiver.

 8      Q.     Okay.     And what about the case manager who

 9   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

12   that correct?

13      A.     That is correct.

14      Q.     And then after about eight or nine months, you

15   found somebody else, some other facility, through whom

16   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

24   appliance to address her teeth grinding?

25      A.     No.



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 1      Q.     Okay.     Now, that's been part of the

 2   recommendation for a while; is that correct?

 3      A.     That was part of the recommendation on a

 4   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

 9   medication.

10      Q.     Okay.

11      A.     And as long as she's medicated well enough,

12   then -- then it is -- there's no teeth grinding.

13                    We had discussed that, and that was one of

14   the things we had talked about.             And that's while she

15   was at Four J's.        Whether or not Four J's followed

16   through on it... I don't think so.

17      Q.     Well, I -- I guess the -- the reason for my

18   question is:      You -- you mentioned that she continues to

19   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

22   burn injuries that have healed; but it's because of

23   her -- the nature of her condition, the spasms and

24   things of that sort; is that correct?

25      A.     That is correct.



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 1      Q.     Okay.     So it's not related necessarily to her

 2   burn injuries; is that right?

 3      A.     That is correct.

 4      Q.     Okay.     I'm sorry.

 5                          MR. PLUMMER:      Your Honor, at this point

 6   in time, we pass the witness.

 7                          THE COURT:     Mr. Thweatt?

 8                          MR. THWEATT:      Thank you, Your Honor.

 9                           REDIRECT EXAMINATION

10   BY MR. THWEATT:

11      Q.     Ms. Wagner, you just heard Mr. Plummer describe

12   that Jenny's burned injuries have healed.

13                    Do you believe that Jenny's healed from this

14   fire?

15      A.     There will always be problems at the sites of

16   the skin grafts.        If the skin becomes dry, it will

17   crack.    So that has to be addressed all the time.

18                    On her -- her donor sites, the thighs, if --

19   if she becomes too hot, they get red and -- and sore,

20   like a sunburn.

21                    And so those are things that are ongoing

22   issues that will continue to be...

23      Q.     Were you ever told before this fire by anyone

24   from Four J's that Jenny refused to sleep in her bed and

25   that, instead, she had to sleep in a recliner like she



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 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

 4   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;

 7   is that right?

 8      A.     That is correct.

 9      Q.     Have you ever heard or seen Jenny have a

10   physical or a verbal response to things like sirens?

11      A.     There are things that will startle her

12   excessively, I guess is the best way... and she will

13   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

19   after this fire?

20      A.     I've heard her -- Jenny speaks in kind of

21   strange ways, and she'll talk to herself.                  On occasion,

22   she'll say something like -- well, actually what she

23   says is, "Is Tanya crying?"

24      Q.      I want to ask you, Ms. Wagner:            You told

25   Mr. Plummer that after this fire, Four J's still had



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 1   some involvement with Jenny for a period of eight to

 2   nine months; is that right?

 3      A.     That is correct.

 4      Q.     Okay.     Can you tell us -- well, don't tell me.

 5   Tell the jury how that interaction after this fire and

 6   the terrible injuries that your daughter suffered, how

 7   that came to be, how Four J's was still involved in your

 8   daughter's life.

 9      A.     I -- well, the first instance was I needed a way

10   to get Jenny home from the hospital.              My family refused

11   to help me -- the one time that they refused to help me

12   was to put her in a car and bring her home because they

13   were worried about Jenny being hurt.              And so they

14   insisted I call Ngozi and ask them to bring Jenny home

15   from the hospital -- from the hospital on the day that

16   she was released.

17                    And later on, Ms. Uduma and the nurse from

18   Four J's came to my house and -- and checked over Jenny.

19                    And Ms. Uduma said, "She needs a hospital

20   bed."

21                    At the time we were -- we were dressing her

22   wounds on my bed, which is a -- you know, just a regular

23   double bed, which meant it's that far off the ground

24   (indicating).

25                    And dressing her wounds took two people.             We



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 1   wanted to do it efficiently and quickly.                   And so one

 2   would stand next to the bed and on one side and do that

 3   half of her body and the other one would climb onto the

 4   bed and do the other half of her body.

 5                    And once Ms. Uduma realized how we were

 6   taking care of her, she -- she ordered a hospital bed

 7   from -- for Jenny.

 8                    They supplied Beabo (phonetics) -- my mind

 9   just went -- Shelipido (phonetics), I believe that's her

10   last name -- to come in and help me during the day.                     I

11   think that started around December.

12                    Beabo was a young woman who would come in

13   and take care of Jenny under the day hab services that

14   Ms. Uduma could help, in order for me to be able to go

15   to my sister's apartment and rest or to go to the

16   grocery store.

17      Q.     Ms. Wagner, I want to show you defense

18   Exhibit 36 again.        Mr. Plummer showed this to you.

19                    This recommendation here that Four J's made

20   on their documents, it says Jenny's new roommate is

21   acceptable to be her roommate.

22                    Do you see that there?         Do you see that on

23   the document?

24      A.     Yes, sir, I see that.

25      Q.     And you were never provided any other



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 1   information from Four J's about Tanya James after -- I'm

 2   sorry -- this date of staffing, which indicates

 3   March 18th, 2008; is that right?

 4      A.     Do you mean the new roommate?

 5      Q.     You were never provided any other document

 6   related to Esperanza Arzola after March 18th, 2008; is

 7   that correct?

 8      A.     No, sir.      I -- you can't share personal, private

 9   information with other people.

10      Q.     All right.      Had you been told that a Four J's

11   document created on April the 15th, 2008, just one month

12   afterwards -- I'm sorry.          Wrong one.

13                    Had you been told that Ms. Esperanza Arzola

14   had had a history of suicide attempts and property

15   damage and violence against staff and was taking

16   antipsychotic medications and those kinds of things,

17   would you have ever agreed to permit your daughter to be

18   housed in the same residence as someone with those kinds

19   of challenges and disabilities?

20      A.     No, no.

21                          MR. THWEATT:      Pass the witness, Your

22   Honor.

23                          THE COURT:     Mr. Sparks?

24                          MR. SPARKS:      I have no questions, Your

25   Honor.



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 1                          THE COURT:     Mr. Plummer?

 2                          Mr. Plummer:      Nothing further of this

 3   witness, Your Honor.

 4                          THE COURT:     Thank you, ma'am.        You may

 5   step down.

 6                          Ladies and gentlemen, we're going to go

 7   ahead -- this is a good stopping point.               We're going to

 8   stop a little bit earlier than I told you before just

 9   because it just makes more sense to stop now than to put

10   on a witness for just ten more minutes.

11                          Again, reminder, we start tomorrow

12   morning at 8:30 sharp.          So I need y'all to be here in

13   plenty of time so that we can bring you in at 8:30 for

14   the very next witness.          The closer we stay to schedule,

15   the better we do at making sure that this trial is

16   completed according to the schedule I gave you right

17   before jury selection.

18                          So please, as I said before, if you're

19   not used to driving into downtown at that hour of the

20   morning, it's going to take you longer than you expect

21   to get here.      So please plan accordingly so you can be

22   here.

23                          Deputy Dewey can give you information

24   about mass transit, if you'd like to take mass transit,

25   also tell you about the various parking -- the parking



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 1   facilities in the area.       The County has a County-owned

 2   parking garage immediately behind this courthouse, which

 3   is that direction (indicating).          It's connected to this

 4   courthouse by an underground tunnel with its own secure

 5   access with metal detectors.

 6                       The lines down there, I'm told, in the

 7   mornings are almost nonexistent, so it's very easy, very

 8   efficient to get through.        That's where I tell my wife

 9   to park whenever she comes down to visit me with the

10   kids during the day.      I ask her to go ahead and park in

11   that parking garage.

12                       Again, I don't get a cut of the parking

13   fees or anything like that.        I'm not trying to steer you

14   that direction.    That's the best option.

15                       But if you want to look at other

16   options, Deputy Dewey can give you some information

17   about that.

18                       With that, we'll see y'all tomorrow

19   morning at 8:30.

20                       (Jury out.)

21                       THE COURT:     Thank you.      Please be

22   seated.

23                       Mr. Thweatt, who do you plan to call

24   tomorrow?

25                       MR. THWEATT:      Your Honor, we'll call



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000852
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 1   Ms. Wylette Taylor tomorrow and, after that, Ms. Uduma,

 2   as well as a couple of the employees who worked there at

 3   the home.

 4                       THE COURT:     Do you think you're going

 5   to finish up tomorrow, or will you go into Wednesday?

 6                       MR. THWEATT:      I think we'll go into

 7   Wednesday, Your Honor.

 8                       THE COURT:     All right.       All right.     As

 9   of now, Plaintiffs and Intervenor's have used one hour

10   of their seven hours.      Defense has used 17 minutes of

11   their seven hours.

12                       I'd like to finish up -- well, we

13   weren't able to finish it before.          First of all, are

14   there any objections to deposition designations I need

15   to rule on?   I never really asked that.

16                       MR. RAVAL:     There are, Your Honor.

17                       THE COURT:     Okay.     All right.     Let's go

18   in -- first we're going to do any objections to

19   Plaintiff's designations, since they're up first.

20                       What I need you to do is I need you to

21   have the transcript of whichever witnesses we're talking

22   about and come up here and we'll -- I'll review those

23   objections.   All right?

24                       MR. RAVAL:     Okay.

25                       MR. PLUMMER:      Now, Judge, or in the



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 1   morning?

 2                       THE COURT:      No, now.

 3                       MR. THWEATT:      I may be able to

 4   short-circuit a lot of this with regard to our

 5   designations.    We're going to designate

 6   Dr. Karen Gollaher and Rick Overholt.            Neither of those

 7   witnesses -- the deposition testimony that we

 8   designated, none of those were objected to during their

 9   depositions.    They had previous counsel --

10                       THE COURT:     Okay.     Slow down.

11                       You've just got two witnesses you're

12   calling by deposition?

13                       MR. THWEATT:      That's correct.

14                       THE COURT:     Mr. Sparks, are you calling

15   anyone by deposition?

16                       MR. SPARKS:      No, Judge.

17                       THE COURT:     Your two witnesses are

18   Dr. Gollaher and --

19                       MR. THWEATT:      A gentleman named

20   Joe Overholt.

21                       THE COURT:     Okay.     All right.     Well, I

22   need to know what the objections are before I can say

23   whether or not they've been waived or not.              So --

24                       MR. THWEATT:      I understand.

25                       THE COURT:     -- I understand what you're



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 1   saying, but we'll just take those up.

 2                          Now, what I do have in front of me are

 3   an October 13th Objections to Plaintiff's Deposition

 4   Excerpts.

 5                          MR. RAVAL:     Those are the most recent.

 6                          THE COURT:     Okay.     So we only need to

 7   look at the Gollaher and Overholt?

 8                          MR. RAVAL:     Correct, Your Honor.

 9                          THE COURT:     So, if I could have those

10   transcripts...

11                          MR. THWEATT:      May I approach, Judge?

12                          THE COURT:      Yes.

13                          Just while they're getting ready,

14   Mr. Sparks, Mr. Thweatt, do you have any objections to

15   any defense deposition designations?              I don't see any in

16   my file, but I just wanted to --

17                          MR. THWEATT:      My understanding is

18   they're not going to designate any.

19                          THE COURT:     Have y'all filed any

20   deposition designations?

21                          MR. RAVAL:     No.     I believe everyone

22   that we're going to designate is coming live.

23                          THE COURT:     Okay.     All right.     That's

24   fine.

25                          So we've just got two witnesses to take



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 1   care of.

 2                       All right.     Let's start with

 3   Dr. Gollaher.

 4                       What's the first objection, Mr. Raval?

 5                       MR. RAVAL:     The first objection is to

 6   relevance; and it's that first section, Page 15, Lines

 7   14 to 16.     But I -- I think I can, again, short-circuit

 8   some of our objections to Dr. Gollaher.

 9                       The general nature of our objections to

10   her deposition excerpts are what we discussed this

11   morning, which is we don't believe that her testimony

12   regarding Esperanza Arzola's fitness for a criminal

13   trial or criminal proceedings is relevant to anything in

14   this trial.

15                       And the excerpts that we refer to

16   regarding relevance are -- the first two objections are

17   specific to that objection.

18                       THE COURT:     Okay.     So let's just -- I

19   just want to go one by one and make sure the record's

20   clear.

21                       Page 15, Lines 14 to 16.            Your

22   objection is relevance?

23                       MR. RAVAL:      Correct.

24                       THE COURT:     Mr. Thweatt, your response?

25                       MR. THWEATT:      First of all, Judge,



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 1   there was no objection made during the deposition; and

 2   as I've indicated there weren't any --

 3                       THE COURT:     Is relevance an objection

 4   to form or an objection that a question's leading?

 5                       MR. THWEATT:      I believe that -- to

 6   answer your question, yes, Your Honor.            If there's going

 7   to be an objection to relevance, it needs to be made

 8   during the testimony, is my understanding.

 9                       THE COURT:     Well, I asked -- I mean,

10   you guys -- under the potted plant rule, you get to

11   object to form, you object to leading, and you object to

12   the responsiveness of the answer or you assert a

13   privilege.   That's my question.

14                       I mean, which of those four things

15   should this objection have been?

16                       (No response.)

17                       THE COURT:     All right.      That's the

18   answer?

19                       All right.     The objection's sustained.

20                       16, Line 19 to 17 [sic] and Line 6 --

21   again, relevance is your objection?

22                       MR. RAVAL:     Correct, Your Honor.

23                       THE COURT:     Okay.     Hold on.    Let me

24   read it.

25                       What's the relevance of this testimony,



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 1   Mr. Thweatt?

 2                       MR. THWEATT:      Your Honor, the relevance

 3   of Dr. Gollaher's inquiry is to -- is to make sure that

 4   these defendants are not going to be permitted to blame

 5   this fire on Esperanza Arzola without the jury fully and

 6   completely understanding that she was deemed incompetent

 7   to stand trial in this case and they -- and that

 8   Dr. Gollaher considered all of the psychological and

 9   psychiatric history in her file that was in place before

10   the fire occurred as she made that determination.

11                       THE COURT:     What is the relevance of

12   whether her attorneys were present during the interview

13   or where the interview took place?           That -- I'm talking

14   about this specific designation.

15                       MR. THWEATT:      I'm sorry, Your Honor.         I

16   thought you were asking me a different question.              One

17   moment, please.    16, Line 19?

18                       I'll withdraw that designation, Your

19   Honor.

20                       THE COURT:     All right.

21                       MR. RAVAL:     Your Honor, the next

22   portion is Page 18, Lines 24 and 25; and our objection

23   is hearsay.

24                       THE COURT:     Why isn't this hearsay,

25   Mr. Thweatt?



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000858
                                                             Volume 1
                                                                        338


 1                       MR. THWEATT:      Well, it's effect on the

 2   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

 6   Page 49, Lines 8 through 16.         And our objection there is

 7   relevance.

 8                       THE COURT:     Okay.     Here's what we'll do

 9   on this:     I'm concerned that -- first of all, I'll

10   overrule the relevance; but I am concerned that the

11   answer in Line 10 may be misleading because I didn't --

12   this Court didn't pay for testimony.

13                       Any responses to my concern?

14                       MR. THWEATT:      Perhaps the parties could

15   enter into a stipulation that this Court -- that is, the

16   269th District Court -- did not pay for the services

17   but, rather, it was the criminal district court of Fort

18   Bend County.

19                       THE COURT:      Response?

20                       MR. RAVAL:     We can agree to that.

21                       THE COURT:     Okay.     If y'all want to do

22   a stipulation to take care of that -- because I do think

23   that who pays for an expert's time is relevant.              That's

24   common testimony.     So y'all take care of it by

25   stipulation.



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000859
                                                             Volume 1
                                                                        339


 1                       Next, Mr. Raval?

 2                       MR. RAVAL:     Your Honor, the next

 3   portion is Page 86, Lines 4 through 24; and our

 4   objection is leading.

 5                       THE COURT:     The objection's overruled.

 6                       MR. RAVAL:     And our final portion is

 7   Pages 88 through 90; and the same objection, leading.

 8                       THE COURT:     The objection's overruled.

 9                       MR. RAVAL:     That concludes our

10   objections to Dr. Gollaher's deposition excerpts.

11                       THE COURT:     Okay.     So the next one is

12   Overholt?

13                       MR. RAVAL:     Yes, Your Honor.

14                       THE COURT:     Okay.     Now, tell me who

15   Overholt is.

16                       MR. RAVAL:     Your Honor, Rick Overholt

17   was hired a few years before the fire to install a fire

18   alarm system at the house at Beretta Court.             Annual

19   inspections were done by Mr. Overholt's company.

20                       And the Plaintiffs and Intervenor are,

21   in particular, going to refer to a particular report

22   that was done in 2005 in which Mr. Overholt's son made

23   some notes on -- on a report indicating that the back

24   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
                                                                        340


 1   Mr. Overholt is.

 2                       MR. RAVAL:      Correct.

 3                       THE COURT:     All right.      First

 4   objection?

 5                       MR. RAVAL:     Our first objection we're

 6   withdrawing at Page 5.       That was a -- a mistype.

 7                       THE COURT:     All right.      Next?

 8                       MR. RAVAL:      Next objection is Page 16,

 9   Lines 1 through 9; and our objections are leading,

10   relevance, and speculation.

11                       THE COURT:      Overruled.

12                       MR. RAVAL:     Our next objection is to

13   Page 28, Lines 7 through 12.

14                       THE COURT:      Grounds?

15                       MR. RAVAL:     The ground is hearsay; and

16   this is in reference to this particular report of 2005

17   prepared by Mr. Overholt's son.

18                       And this portion and the next few

19   deposition excerpts are referring to handwriting by

20   Mr. Overholt's son on the report.          So there are multiple

21   layers of hearsay concerns.

22                       THE COURT:     Okay.     Do y'all have a

23   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
                                                                         341


 1   there a business records affidavit on this report?

 2                       MR. THWEATT:      It was produced by the

 3   Defendants and by Mr. Overholt in his capacity as a

 4   retained witness to us at his deposition.

 5                       THE COURT:     Okay.     Well, have you laid

 6   a predicate for a business records document then?

 7                       MR. THWEATT:      In the deposition I

 8   believe we have, Your Honor.

 9                       THE COURT:     Okay.     I'll give you a

10   second.   Try and figure out where you've laid that

11   foundation for me, please.

12                       MR. THWEATT:      All right.

13                       Your Honor, on Page 7 of Mr. Overholt's

14   deposition -- or I'm sorry -- Page 8 of his deposition,

15   I've indicated that Mr. Overholt -- quote, (reading)

16   You've handed me some documents.           You want to just

17   identify them for the record?

18                       He goes through some documents.           Oh,

19   I'm sorry.    On Page 9 he indicates he's brought a total

20   of seven documents that were responsive to the subpoena

21   that was served ahead of his deposition, and I -- I

22   marked all of those as Exhibit Number 2 to his

23   deposition.

24                       We then went into what he does for a

25   living, and he described what he does.            And the



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000862
                                                             Volume 1
                                                                           342


 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

 4   Number 3.     He identifies it on Line 18 -- or I'm

 5   sorry -- Line 20, Page 26.

 6                          (Reading)     Yes, it's an inspection

 7   form.    It's filled out during the inspection by one of

 8   my technicians.

 9                          Question:     "And the tech appears to be

10   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

17   kind of inspection.         We identified whose handwriting was

18   on it, and there were no objections to any of this

19   during the time of the deposition.

20                          So he's identified it as a business

21   record from Omni; and he's the one who produced it to me

22   at his deposition, Your Honor.

23                          Now, I also think that, if I'm not

24   mistaken, that's -- we submitted that as part of our

25   exhibits that were previously admitted in this trial.



             Cause No. 2009-40925, Wagner Vs. Four J's, et al   000863
                                                                Volume 1
                                                                           343


 1                        THE COURT:     Is it admitted?         Which

 2   exhibit is it?

 3                        MR. THWEATT:      I'm sorry.        We offered

 4   it.   They objected to it.        Plaintiff's Exhibit 34, which

 5   has not been admitted.

 6                        I would also highlight that as an

 7   exception to the hearsay rule we can use this document

 8   to show notice.     And that's really what it's being

 9   offered for.

10                        This document was provided as of

11   October the 4th, 2005; and it states in the middle of

12   it, (reading) The rear exit door, key dead bolt is

13   locked with no key access.         And the customer's name

14   there is Four J's Care.

15                        So one of the reasons why we're

16   offering it, Your Honor, is to show that Four J's had

17   notice of this condition by the people that they hired

18   for fire inspection and testing at that home.

19                        THE COURT:     All right.       As to Page 28,

20   Lines 7 through 12, the objection is sustained in part

21   and overruled in part.        I'll allow the testimony for the

22   limited purpose of showing notice.

23                        Are these going to be video recorded

24   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
                                                                        344


 1   videotaped.   Mr. Overholt's was not.

 2                       THE COURT:     All right.      Remind me

 3   before you start Mr. Overholt's deposition that I'll

 4   need to give an instruction as to that particular set of

 5   lines.

 6                       MR. THWEATT:      Yes.

 7                       THE COURT:     All right.      Next?

 8                       MR. RAVAL:     Your Honor, the next

 9   portion is Page 28, Lines 19 through 23; and the

10   objection is also hearsay on that.

11                       THE COURT:     Anything -- any additional

12   argument, Mr. Thweatt?

13                       MR. THWEATT:      Not beyond what we've

14   already stated.    I think -- I hope I've described for

15   the Court what Mr. Overholt's position was and what this

16   document related to sufficiently.

17                       THE COURT:     It will be the same ruling

18   as to Lines 19 through 23 as -- as I -- same ruling as

19   the ruling was for Lines 7 through 12.

20                       MR. RAVAL:     Your Honor, the next

21   portion is Page 19 -- Page 29, Line 18, to Page 30, Line

22   2; our objection is also hearsay.

23                       And if I could just direct the Court on

24   Page 29 -- in answer to a question, starting on Line 11

25   to about Line 14, Mr. Overholt is, I believe, explaining



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000865
                                                             Volume 1
                                                                        345


 1   that particular notes on this report don't -- may not

 2   meet the business record exception.           It doesn't look

 3   like it was something ordinarily done in the course of

 4   business.

 5                       THE COURT:      Well, have I completely

 6   overruled your hearsay objection or have I said I'll let

 7   it in for a limited purpose?

 8                       MR. RAVAL:     Yes, sir.

 9                       THE COURT:     Okay.     All right.     Let me

10   read this, please.

11                       Mr. Thweatt, your response to Page 29,

12   Line 18, through Page 30, Line 2?

13                       MR. THWEATT:      Well, he's talking about

14   a conversation that he had with his employee, his son,

15   and describing the effect on -- on -- effect of that

16   conversation on him.

17                       So my response is effect on listener

18   exception, I think, should apply, as well as the

19   business record predicate that we've laid previously

20   that was sustained in part and overruled in part.

21                       THE COURT:     The objection to Page 29,

22   Line 18, to Page 30, Line 2 is sustained.

23                       Next, Mr. Raval?

24                       MR. RAVAL:      Next is Page 30, Line 8 to

25   Line 23; and the objection is hearsay.



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000866
                                                             Volume 1
                                                                           346


 1                          THE COURT:     The objection's sustained.

 2                          MR. RAVAL:      Next portion is Page 31,

 3   Line 10 to Line 24.

 4                          THE COURT:     Response, Mr. Thweatt?

 5                          MR. THWEATT:      Your Honor, once again,

 6   we urge that there was no objection during the time that

 7   his testimony was taken; and we don't think that the

 8   hearsay exception would apply to that, even if one was

 9   made.    But that's my response.

10                          THE COURT:     This one will be sustained,

11   in part, overruled to show notice, again, just like

12   Page 28, Lines 7 to 12 and 19 to 23.

13                          MR. RAVAL:     Your Honor, the next

14   portion is Page 32, Line 19, going to Page 32 -- 33,

15   Line 11.     The objection is hearsay.

16                          THE COURT:     Response, Mr. Thweatt?

17                          MR. THWEATT:      Well, I think on Page 33,

18   Your Honor, Line 12, I asked him to clarify how he knew

19   that -- how he knew what we were talking about.

20                          And I said, (reading) Did you know that

21   from the -- from your time of working at Omni?

22                          He answered yes; so he established that

23   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
                                                                        347


 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

 6   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

12   to 16.   The objections are hearsay and relevance.

13                       THE COURT:     How is this not hearsay,

14   Mr. Thweatt?

15                       MR. THWEATT:      I think it pretty clearly

16   is, Your Honor.

17                       THE COURT:     The objection's sustained.

18                       MR. RAVAL:     Next is Page 43, Line 10,

19   going into evidence of subsequent remedial measures and

20   relevance.     Should be Line 10 to Line 16.

21                       THE COURT:     Thank you.

22                       Response, Mr. Thweatt?

23                       MR. THWEATT:      Well, he doesn't

24   identify, Your Honor, why the installations were put in

25   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
                                                                        348


 1   subsequent remedial measure or whether it was just some

 2   other motivation for the company.

 3                       And until that's established, I don't

 4   think that the objection is timely yet.            And subsequent

 5   remedial measures, you've got to demonstrate that the

 6   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

 9   prove?

10                       MR. THWEATT:      Offering it to show that

11   a reasonable and prudent company who's taking care of

12   mentally disabled people certainly had the opportunity

13   to address their helplessness, even in a fire, by

14   installing overhead systems such as overhead sprinklers

15   and that the -- and that they did not.

16                       THE COURT:     The objection's sustained.

17                       MR. RAVAL:     Your Honor, the last

18   objection is to Page 49, Lines 14 through 17.             The

19   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

23   be some mixup because the transcript I'm looking at,

24   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
                                                                          349


 1   15.

 2                         THE COURT:     12 to 15?

 3                         MR. RAVAL:     I think so, Your Honor,

 4   yes.

 5                         THE COURT:     Overruled.

 6                         MR. RAVAL:     That concludes our

 7   objections.

 8                         THE COURT:     All right.       Mr. Thweatt,

 9   you can retrieve the transcripts.            Thank you.

10                         MR. THWEATT:      Thank you.

11                         THE COURT:     Is there anything else we

12   need to take up before we break for the day?

13                         (No response.)

14                         THE COURT:     Okay.     I haven't had a

15   chance to tell y'all this.          I want to make sure y'all

16   know beforehand.       Sometimes it seems I'll come back from

17   a break or I'll come in in the morning, ready to bring

18   the jury in, and one or both sides ask if they can take

19   up some matters outside the presence of the jury, which

20   I understand things come up from time to time.

21                         If that's going to be the case, you

22   need to tell me beforehand.          Don't wait until I come in

23   here, ready to call the jury in, to tell me, oh, wait,

24   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
                                                                           350


 1   tomorrow morning.     So if there's something we need to

 2   take up before I bring the jury in, find Deputy Dewey,

 3   go to the customer service area of this court, find one

 4   of my clerks, and just ask them to let me know that

 5   they'd like -- that y'all would like to talk to me

 6   before I bring the jury in and I'll come out and we can

 7   take care of it as -- you know, 8:15, 8:20.

 8                       Same goes for when we're on breaks.               If

 9   for some reason something comes up and you need to talk

10   to me before we bring the jury back from a break, don't

11   wait until the break is over to tell me.                Let me know

12   earlier so that we can make sure that we go ahead and

13   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,

17   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

20   depositions, both of them felt that there were

21   threatening comments made to them in their native

22   language -- and I'm not certain what that is, but all of

23   them are Nigerian -- that were made -- threatening

24   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
                                                                          351


 1   to testify; and I'd like to bring to the Court's

 2   attention their concern about their safety, one, and the

 3   threats that are being made because they are testifying

 4   against their former employer.

 5                       THE COURT:     All right.      Thank you.

 6                       I don't need to tell any of the lawyers

 7   what their ethical duties are.         I've got good lawyers on

 8   all sides representing all parties; so I'm not concerned

 9   about that.

10                       Obviously, there are penal statutes

11   against tampering with witnesses and making threats; and

12   so if -- you know, if -- if any of the -- if there's any

13   evidence of that, we can take care of it accordingly,

14   either through my contempt powers or through a referral

15   to the District Attorney's office.

16                       The courthouse is safe.             I've got a

17   bailiff; and when she feels like she needs backup, we've

18   got three other bailiffs on this floor, plus 20-some-odd

19   sheriff's deputies in this courthouse alone.               So I don't

20   think that there will be anything like that.

21                       But if you would like to talk to the

22   bailiff after we close today, you know, to give her more

23   details -- she's obviously a licensed peace officer and

24   basically has more expertise in how to secure a

25   courtroom than myself.       I -- I'm the expert in



          Cause No. 2009-40925, Wagner Vs. Four J's, et al      000872
                                                               Volume 1
                                                                        352


 1   administering justice.       She's the expert in law

 2   enforcement when it comes to those types of things.

 3                       So I understand you'd want to bring

 4   that to my attention.      I'll just say, you know, if

 5   something happens, we'll deal with it appropriately; but

 6   I'm sure I'm not going to have any problems with any of

 7   the lawyers here.

 8                       And obviously, you know, if things

 9   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

13   good night.   See y'all tomorrow morning bright and

14   early.

15                       (Proceedings recessed for the day.)

16

17

18

19

20

21

22

23

24

25



          Cause No. 2009-40925, Wagner Vs. Four J's, et al   000873
                                                             Volume 1
                                                                                                                                                       353


 1                       REPORTER'S CERTIFICATE

 2   THE STATE OF TEXAS     )
     COUNTY OF HARRIS       )
 3

 4       I, Annette Peltier, Deputy Official Court Reporter

 5   in and for the 269th District Court, Harris County,

 6   State of Texas, do hereby certify that the above and

 7   foregoing contains a true and correct transcription of

 8   all portions of evidence and other proceedings requested

 9   in writing by counsel for the parties to be included in

10   this volume of the Reporter's Record, in the

11   above-styled and numbered cause, all of which occurred

12   in open court or in chambers and were reported by me.

13       I further certify that this Reporter's Record of the

14   proceedings truly and correctly reflects the exhibits,

15   if any, admitted by the respective parties.

16       I further certify that the total cost for the

17   preparation of this Reporter's Record is $__________ and

18   was paid by ____________________.

19       WITNESS MY OFFICIAL HAND this the __________ day of

20   ____________________, 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=apeltiercsr@hotmail.com
                                 ___________________________
                                                     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
24

25



          Cause No. 2009-40925, Wagner Vs. Four J's, et al                                     000874
                                                                                             Volume 1
                                                                   1



1                          VOLUME 3 OF ___
                          REPORTER'S RECORD
2                        CAUSE NO. 2009-40925

3

4    PATTI WAGNER, AS GUARDIAN     *   IN THE DISTRICT COURT OF
     OF JENNY ANN WAGNER, AN       *
5    INCAPACITATED ADULT           *
         Plaintiff                 *
6                                  *
     VS.                           *   HARRIS COUNTY, T E X A S
7                                  *
     FOUR J'S COMMUNITY LIVING     *
8    CENTER, INC., ANTHONIA        *
     UDUMA AND GODFREY UDUMA       *
9        Defendants                *   269TH   JUDICIAL DISTRICT

10

11                            JURY TRIAL

12                         OCTOBER 18, 2011

13

14                    On the 18th day of October, 2011, the

15   following proceedings came on to be heard in the

16   above-entitled and numbered cause before the Honorable

17   Dan Hinde, Judge Presiding, held in Houston, Harris

18   County, Texas.

19                    Proceedings reported by stenographic

20   machine shorthand.

21

22

23

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




                                                          000875
                                                    2



1    A P P E A R A N C E S:

2

3    Mr. L. Lee Thweatt
     SBN: 24008160
4    Mr. Joseph D. Terry
     SBN: 24013618
5    TERRY & THWEATT, P.C.
     One Greenway Plaza, Suite 100
6    Houston, Texas 77046-0102
     713.600.4710
7
     COUNSEL FOR PLAINTIFF
8

9

10   Mr. James C. Plummer
     SBN: 16075700
11   Mr. Amar Raval
     SBN: 24046682
12   PLUMMER & KUYKENDALL
     4203 Montrose Blvd., Suite 270
13   Houston, Texas 77006
     713.522.2887
14
     COUNSEL FOR DEFENDANT
15

16

17   Mr. Shelton Sparks
     SBN: 06507160
18   SHELTON SPARKS & ASSOCIATES, L.L.C.
     706 Cordell Street
19   Houston, Texas 77009
     713.862.5533
20
     Ms. Tiffany C. Harvey
21   SBN: 24067343
     THE LAW OFFICE OF TIFFANY HARVEY
22   706 Cordell Street
     Houston, Texas 77009
23   832.498.7076

24   COUNSEL FOR INTERVENOR

25




                                           000876
                                                                  3



1                            I N D E X
                             VOLUME 3
2                         OCTOBER 18, 2011

3

4                                                          Page

5    PROCEEDINGS .................................            6

6    WITNESSES:

7                             Direct   Cross   Voir Dire    Vol

8    WYLETTE TAYLOR               6      30                   3
                                 43                           3
9
     ANTHONIA UDUMA              47     103                   3
10
     CHIAKA IRONDI              107     114                   3
11                                      116                   3
                                        126                   3
12
     RICK OVERHOLT              130                           3
13   by deposition

14   AMUCHE UDEMEZUE            162     189                   3
                                        191                   3
15                                      230                   3

16   KEVIN KERN                 231     255                   3
                                        256                   3
17                              264     265                   3

18   DR. KAREN GOLLAHER         267                           3
     by deposition
19

20   Plaintiff rests .............................          307

21   Intervenor rests ............................          307

22   Motion for Directed Verdict .................          308
     Ruling ......................................          314
23
     Motion by Defendant .........................          314
24   Ruling ......................................          317

25   Court Reporter's Certification ..............          320




                                                       000877
                                                                    4



1                    PLAINTIFF'S EXHIBIT INDEX

2

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
7
      49   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

13

14                         * * * * * * *

15

16                   DEFENDANT'S EXHIBIT INDEX

17

18   NO.   DESCRIPTION                ID   OFFER   ADMIT    VOL

19    23   Minutes of Staff          223                      3
           In-Service Training
20
      29   Amuche Udemezue's         217                      3
21         Service Logs regarding
           Esperanza Arzola
22

23                         * * * * * * *

24

25




                                                           000878
                                                                     5



1                   INTERVENOR'S EXHIBIT INDEX

2

3    NO.   DESCRIPTION              ID      OFFER   ADMIT    VOL

4      3   Inspection report       304       305     306     3
                                         (Limited Admission)
5
      19   Certified Copy of        14                         3
6          Wylette Taylor's
           Birth Certificate
7
      25   Pictures taken in        25        26      27       3
8          2010 of Beretta Court

9

10

11                        * * * * * * * *

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                                            000879
                                                                         6



1                        P R O C E E D I N G S

2                     THE COURT:     Good morning, please be

3    seated.

4                     BAILIFF:     All rise.

5                     (The jury present, proceedings resumed

6                     in open court as follows.)

7                     THE COURT:     Thank you.     Please be

8    seated.

9                     Mr. Thweatt, call your next witness.

10                    MR. THWEATT:     Your Honor, I believe

11   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,

20   having been placed under oath, testified as follows:

21                        DIRECT EXAMINATION

22   BY MR. SPARKS:

23       Q.    Ms. Taylor, please state your name for the

24   record.

25       A.    Wylette Taylor.




                                                                000880
                                                                  7



1          Q.   Ms. Taylor, you are here in a capacity of

2    the guardian for Derrick James, are you not?

3          A.   Yes.

4          Q.   Tell the Court, or the jury, if you would,

5    how you became his guardian.

6          A.   I went to probate court, and I asked for

7    guardianship.

8          Q.   And Derrick has been in your care, custody

9    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

14   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

17   household throughout most of his life until he was

18   16.

19         Q.   And who do you know Derrick James' mother to

20   be?

21         A.   Tanya James.

22         Q.   So Tanya James is Derrick James' mother; is

23   that correct?

24         A.   Yes.

25         Q.   And who is Tanya James in relationship to




                                                         000881
                                                                     8



1    you?

2           A.     My sister.

3           Q.     Your sister?

4           A.     Yes.

5           Q.     Okay.   And who is your -- do you have the

6    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

11   point in time?

12          A.     Yes.

13          Q.     Okay.   Did you ever come to a point in time

14   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

19   that situation.

20          A.     CPS came in and took myself, Derrick and my

21   other nephew, Eric, because my mom was having

22   problems with, I guess, a boyfriend at that current

23   time.       And they separated us, but Tanya was old

24   enough to stay so they let Tanya stay with mom.

25          Q.     So did she ever come back to live with you




                                                            000882
                                                                   9



1    again?

2        A.     No.    We never lived together, but we've seen

3    them because they stayed -- well, when we got back to

4    our great aunt, Ms. Tigner --

5        Q.     Yes.

6        A.     -- they stayed around the corner.    So we

7    used to see them all the time.

8        Q.     So who was the other nephew that you

9    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

16   Felicia James, who is your older sister; is that

17   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
                                                                  10



1        A.     Derrick James.

2        Q.     And you mentioned an aunt, Ms. Tigner.       Is

3    that right?

4        A.     Yes.

5        Q.     How was she related to you?    Was she related

6    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

10   Tanya James, in reference to the Four J's incident

11   and the fire giving rise to the lawsuit we have

12   today?

13       A.     Well, I asked about Derrick's ACH program

14   service.    And when I switched it, they recommended

15   him to see a psychologist by the name of

16   Dr. Lockwood.      And upon us arriving, Dr. Lockwood

17   informed me that he used to have a patient by the

18   name of Tanya James but she had died.      And I was,

19   like -- you know, I was inquisitive.      So I looked

20   into it a little further.

21       Q.     And what did you find out and where did you

22   look?

23       A.     The first step I took, I called the

24   coroner's office, the vital statistics, you know, to

25   see if they had a Tanya James in their records that




                                                         000884
                                                                    11



1    had passed away in 2008.      And, of course, I spoke

2    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

7    died in, in a fire intentionally set and of smoke

8    inhalation.     And I was, you know, I was, like, wow,

9    she burned to death, you know.      So I kind of spoke

10   with my husband about it.      And he informed me that,

11   you know, I should look into it a little further.         So

12   I seen the address on the death certificate, so I

13   went out to the house.

14       Q.      And when you went out there, what did you,

15   what did you see?      What, what did you observe?     What

16   did you find, if anything?

17       A.      I seen a badly burned structure of a house,

18   still standing two years later.      And I took the

19   pictures of the outside.      I took pictures of the

20   inside.     I seen the medicine, people's medicines

21   still laying on the floor, clothes everywhere,

22   garbage everywhere, like someone had been there doing

23   shelter or just, you know, whatever they were doing

24   in there.     And I was like, wow, two years later, it's

25   still open to the public.      Anybody can just walk in,




                                                            000885
                                                                      12



1    you know.     That's what I am thinking to myself when I

2    am taking pictures.       And it was eerie.   But at the

3    same time, I kind of felt like, you know, okay, I

4    felt, I felt her presence there a little, you know.

5    Because I kept going to this one particular bathroom

6    over and over.       No matter how many times I walked

7    around the house, I kept going back to this one

8    particular bathroom which later I found out that's

9    where she was found, in that one particular bathroom.

10                      Thank you.

11                      (Crying.)

12       Q.      (By Mr. Sparks)     There have been some

13   questions in reference to the idea that Tanya, having

14   been over at the Beretta Court property since

15   sometime in 2002, that she didn't have a family.           You

16   are aware of that question being raised, are you not?

17       A.      Yes.

18       Q.      And there has been some question regarding

19   the idea of whether or not Derrick James is actually

20   the heir to this Tanya James here.        You are aware of

21   that, correct?

22       A.      Yes.

23       Q.      And while you were at the property, did you

24   find anything?

25       A.      I found a binder that had -- it was closed.




                                                            000886
                                                               13



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

3    it to be hers.     But when I opened it, it was hers.

4    It had all her information in it, and I found that

5    picture in the -- when I first opened it, it was that

6    picture and I knew it was her (indicating).

7        Q.   And that binder has been marked as Exhibit 1

8    in your deposition.       And this is -- is this a true

9    and accurate copy of what you found?

10       A.   Yes.

11       Q.   And in this binder, is this the picture that

12   you made reference to?

13       A.   Yes.

14       Q.   And when you saw this picture, did you

15   recognize this individual to be your sister?

16       A.   Yes.

17       Q.   And that's the same picture that has been

18   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

23   documentary evidence regarding some certificates.

24                    Now --

25                    THE COURT:    Is this document in




                                                          000887
                                                                       14



1    evidence?

2                       MR. SPARKS:    It is, Your Honor.

3                       THE COURT:    Which exhibit are you

4    referring to?

5                       MR. SPARKS:    This is Exhibit 19.    We are

6    going to put in 19, 20, 21, 22, 23, 25.

7        Q.      (By Mr. Sparks)      Can you see that on your

8    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

15   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

20   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
                                                                 15



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

6    certificate of birth of Tanya James.

7          A.   Uh-huh.

8          Q.   Tanya Chevette James.     And who was her

9    mother?

10         A.   Mary Lee James.

11         Q.   And where was she born?

12         A.   She was born at Jefferson Davis Hospital in

13   Houston.

14         Q.   Okay.     Where was Mary Lee James from?

15         A.   Missouri.

16         Q.   Missouri.

17                      Does that look like the same signature

18   that's on your birth certificate?

19         A.   Yes.

20         Q.   And you have known your mother's

21   handwriting, and would you recognize it when you saw

22   it?

23         A.   Yes.

24         Q.   Does that look like the handwriting of your

25   mother?




                                                            000889
                                                               16



1        A.   Yes.

2        Q.   I want to next show you the birth

3    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

10   grandmother, in the right-hand corner?

11       A.   Mary Lee Taylor.

12       Q.   And does that look like the signature of

13   your mother?

14       A.   Yes.

15       Q.   Now, on your birth certificate, it was Mary

16   Lee --

17       A.   Taylor.

18       Q.   -- Taylor.   Right?

19       A.   Yes.

20       Q.   And -- I'm sorry, on your birth certificate

21   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

25   Mary Lee Taylor.




                                                       000890
                                                               17



1        Q.    Okay.   And when, when you were born, she was

2    married to your father; is that correct?

3        A.    Yes.

4        Q.    When Tanya James was born, she was not; is

5    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

10   his mother; is that correct?

11       A.    Yes.

12       Q.    Now, on the Application for Guardianship --

13   Tanya was taken into the Harris County Guardianship

14   Program, was she not?

15       A.    Yes.

16       Q.    And I want to show you this document, which

17   was filed in probate court back in, looks like July

18   of 1997, the Application for Guardianship of Person.

19   Do you see the name there where it says for Tanya, in

20   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

25   mother?




                                                       000891
                                                             18



1        A.   Yes.

2        Q.   Is that the right spelling of your mother's

3    name?

4        A.   No.

5        Q.   Did you ever know her to live at that

6    address, 4199 Trail Lake?

7        A.   Yes.

8        Q.   How did you know that to be an address where

9    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

16   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

21   side, was that you?

22       A.   Yes.

23       Q.   Did you ever live at 2417 Rosalee?

24       A.   Yes.

25       Q.   Number 1?




                                                      000892
                                                              19



1        A.     Yes.

2        Q.     And 2702 Little York, do you recognize that

3    address?

4        A.     No.

5        Q.     No?

6                      What about Elvira Tigner, does that

7    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

14   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

21   confirm to you that the same person of this Tanya

22   James that passed away in the fire on September 5th

23   of 2008 is the same Tanya James that's in that

24   picture, who is the same Tanya James that is your

25   sister?




                                                         000893
                                                                   20



1           A.   Yes.

2           Q.   Now, I want to show you the death

3    certificate of Mary Lee Taylor.         Do you see that?

4           A.   Yes.

5           Q.   And the individual who is listed on there as

6    her daughter giving the information, is that you?

7           A.   Yes.

8           Q.   And this is the death certificate of Tanya

9    James.

10                      MR. SPARKS:   Bring that down a little

11   bit.

12          Q.   (By Mr. Sparks)      Can you see that she's got

13   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

18   was spelled T-o-n-y-a.        Is that correct?

19          A.   Yes.

20          Q.   But on the documents you guys had, it was

21   T-a-n-y-a?

22          A.   Yes.

23          Q.   But in your mind, the same -- it was still

24   your sister?

25          A.   Yes.




                                                            000894
                                                             21



1        Q.   I want to show you a photo, if I may, of --

2    tell me if you recognize this photo and who are the

3    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

8    individual; and for that individual you identify,

9    describe a piece of clothing they are wearing?

10       A.   The lady in the green jacket is our mother,

11   and the lady in the white sweater is my sister.

12       Q.   When you say "the lady in the green," is it

13   with the purple on with the heart around her chest,

14   is that Mary Lee James?

15       A.   Yes.

16       Q.   And the lady who she has her arm, in the

17   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

22   on this photo here (indicating)?

23       A.   Yes.

24       Q.   The same individual whose photo that you

25   found in this book here when you went out to the




                                                        000895
                                                                   22



1    facility at Beretta Court?

2        A.    Yes.

3        Q.    Now, you are aware, are you not, that there

4    were pictures taken by the Houston Fire Department on

5    September the 4th of 2008?

6        A.    Yes.

7        Q.    And you have seen those documents; is that

8    right?

9        A.    Yes.

10       Q.    I want to ask you, have you seen this one

11   before?

12       A.    Yes.

13       Q.    And are you of the opinion, based on the

14   information from the Houston Fire Department, that

15   that was Tanya James that was taken from the Beretta

16   Court property?

17       A.    Yes.

18                    THE COURT:    Which exhibit are you

19   referring to?

20                    MR. SPARKS:    Judge, I am referring to

21   photos from Intervenor's Exhibit Number 1.

22                    THE COURT:    Okay.   Just for the record,

23   make sure we are keeping of track of which exhibits we

24   are referring to.

25                    MR. SPARKS:    Yes, sir.   And there are




                                                            000896
                                                                 23



1    approximately four or five of these, the same exhibit

2    number, Judge.

3        Q.   (By Mr. Sparks)       And you have seen this one

4    before too; is that correct?

5        A.   Yes.

6        Q.   And this is also from the same batch of

7    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

12   and things that Ms. James had on September 4, 2008;

13   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
                                                                     24



1    record, I want to go to Intervenor's Exhibit 25.            I

2    have a couple pictures from there.

3                      THE COURT:     25 is not in evidence.

4                      MR. SPARKS:     All right.   I thought we

5    had agreed to that; but if we haven't, that's fine.

6                      THE COURT:     Is there an objection to

7    Exhibit 25?

8                      MR. PLUMMER:     Yes, Your Honor.

9                      THE COURT:     All right.

10       Q.     (By Mr. Sparks)       When you went out to the

11   facility, you said you took some photos.          Is that

12   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

19   you took at the facility of Beretta Court?

20       A.     Yes.

21       Q.     Would you recognize them again if you saw

22   them?

23       A.     Yes.

24       Q.     Would they be true and accurate photos that

25   were taken by you on -- do you know what date they




                                                               000898
                                                                    25



1    were taken?

2        A.    I forgot the date, the exact date.          But it

3    should be stamped on the pictures.

4                     THE COURT:     I need you to speak up,

5    please, ma'am.

6                     THE WITNESS:     Okay.

7        A.    It should be stamped on the pictures,

8    though.

9                     MR. SPARKS:     Judge, I want to approach

10   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

13   Exhibit 25, if you would, and tell the jury, or tell

14   the Court, whether or not you recognize those photos

15   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

19   took.

20       Q.    (By Mr. Sparks)       Are they a true and

21   accurate reflection of what you saw when you took the

22   pictures on the day that they were taken?

23       A.    Yes.

24                    MR. SPARKS:     Judge, I would like to

25   tender these to counsel.




                                                             000899
                                                                    26



1                     (Referenced documents tendered to

2                     counsel.)

3                     MR. SPARKS:     They have been previously

4    provided.    I would like to offer them into evidence at

5    this time.

6                     THE COURT:     Do you have an objection,

7    Mr. Plummer?

8                     MR. PLUMMER:     Your Honor, just one

9    second, if I can look at them, please.

10                    The objection we have -- we have no

11   objections to most of them.        There is one we have an

12   objection to, on the grounds of relevancy.

13                    THE COURT:     All right.   Approach the

14   bench, please.

15                    (Bench discussion.)

16                    THE COURT:     All right.   What's the

17   relevance of this one, Mr. Sparks?

18                    MR. SPARKS:     Judge, Elisha Campbell was

19   a resident, one of the four individuals that was the

20   tenants there at the Beretta Court property.         This

21   shows that she was there, and this also shows what was

22   left at the facility when my client went out and took

23   these pictures and also found the binder.

24                    THE COURT:     Okay.

25                    MR. PLUMMER:     I don't see the relevance




                                                               000900
                                                                       27



1    to this particular photograph.          There is no debate

2    that she was a resident.          That was not an issue.     So

3    it's redundant, if nothing else.          But it is a mere

4    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

14   you this photo.       Tell the jury what it is a picture

15   of, if you would.

16          A.   It's the picture of the outside of the

17   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

23   not?

24          A.   Yes.

25          Q.   And this here?




                                                                000901
                                                             28



1        A.   Is also the outside of the front of the

2    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

13   didn't have any restraint to allow you entrance into

14   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

19   clients that lived there.

20       Q.   That was still there some, almost two years

21   later?

22       A.   Yes.

23       Q.   Open to the public?

24       A.   Yes.

25       Q.   Can you describe this photo here?




                                                        000902
                                                              29



1        A.   That's the kitchen area.

2        Q.   And that one?

3        A.   This is the living room area where in the

4    back, I guess, they stored clothes; but it, I guess,

5    during the fire the wall got torn down or whatever.

6    You can see the closet area.    But this is the living

7    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

14   kitchen area.

15       Q.   Now, do you know whether or not Ms. James

16   had a will?

17       A.   No, she didn't.

18       Q.   And do you know whether or not she had any,

19   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

22   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

25   Derrick James; is that correct?




                                                       000903
                                                                        30



1           A.      Yes.

2           Q.      Did you know whether or not she owned any

3    property?

4           A.      No, she didn't.

5                          MR. SPARKS:     Pass the witness, Your

6    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

12   BY MR. PLUMMER:

13          Q.      Ms. Taylor, let me understand this a little

14   bit.        I believe you said Ms. James was removed from

15   the home -- or you were removed from the home she

16   lived in when you were about 8 years old.             Is that

17   correct?

18          A.      Yes.

19          Q.      And after that, at some point in time, she

20   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

25   point in time?




                                                                000904
                                                                 31



1        A.    As far as I knew she was fine, besides her

2    mental stability.

3        Q.    Okay.     So she was mentally retarded her

4    whole life; is that correct?

5        A.    Yes, she was mentally challenged.

6        Q.    It wasn't the result of any kind of

7    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

10   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

19   away from her mother?

20       A.    Yes.

21       Q.    When you say they took her away, who took

22   her away from your mother?

23       A.    Adult Protective Service.

24       Q.    Okay.     Why did they take her away from your

25   mother?




                                                            000905
                                                                 32



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

5    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

10   about 21 or thereabouts, was -- she was taken away

11   from your mother's home and put in a group home.       Is

12   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

16   Ms. James died, is it fair to say that you had no

17   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

24   to, what, your early 30s, you had had no contact with

25   your sister?




                                                           000906
                                                                33



1        A.     No.

2        Q.     Now, I believe you said your sister had a

3    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

10   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

13   same household as you; is that correct?

14       A.     For a while we all stayed in the same

15   household with my mother.

16       Q.     When was it that you ceased to live with

17   Derrick?

18       A.     When my aunt -- Derrick is very -- had

19   gotten aggressive, and my aunt couldn't control him

20   anymore.    So I believe around 16, she gave him back

21   to Child Protective Services.

22       Q.     Okay.     And when he went with Child

23   Protective Services, do you recall where he lived

24   then?

25       A.     No.




                                                           000907
                                                                    34



1        Q.      How long was he with Child Protective

2    Services?

3        A.      Up until the time that I became aware of

4    where he was.       Once I became old enough to where I

5    could look for him, I called his caseworker, and his

6    caseworker gave me the address to where he was.          And

7    I used to get him on weekends and holidays.        And once

8    they, I guess, that particular place where he was

9    closed down, and they switched him to another place.

10   And this place had enrolled him into a home community

11   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

18   guess they wasn't doing what they supposed to do, and

19   the lady from the HCS Program contacted me.        And

20   that's how I ended getting Derrick.

21       Q.      When you got Derrick, you became his foster

22   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
                                                                           35



1           Q.      How severe is his retardation?

2           A.      He is severely.

3           Q.      Okay.    Can you give me a general idea of

4    what he can and can't do?

5           A.      He can walk, he can talk, he can feed

6    hisself.        I have to bathe him.       I have to dress him.

7    I help him brush his teeth because I'm trying to get

8    him to do it on his own.           I take him to his doctor's

9    appointments and things.           He can't function on his

10   own.        You know, like if I wanted him to catch the bus

11   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

15   he -- has that been reduced, his level of aggression,

16   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

20   he takes Depakote.           Carbatrol.    Clonidine.

21   Clonazepam.           1 milligram, 2-milligram.    He takes a

22   lot of different medications.             I can't -- I know he

23   takes Seroquel, 100, 200 and 400-milligram.             And I

24   can't think of the rest of them.

25          Q.      Okay.




                                                                000909
                                                                    36



1        A.   But he takes a lot of them.

2        Q.   Okay.     Now once you made this discovery, I

3    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

8    it was your sister that you believe died in this

9    fire, Derrick filed this lawsuit; is that right?

10       A.   Yes.

11       Q.   Okay.     And the lawsuit was already going on,

12   but you all intervened in this lawsuit; is that

13   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

19   Court to take judicial notice of its file and the Plea

20   in Intervention that was filed in this matter, and

21   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
                                                                     37



1    notice.

2                      MR. PLUMMER:     Okay.   May I approach the

3    witness, Your Honor?

4                      THE COURT:     Yes.

5        Q.    (By Mr. Plummer)        Let me show you a copy of

6    the Court's filed Plea in Intervention.          And can you

7    tell me who the person is that filed that lawsuit, in

8    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

15   lawsuit in September, he was not competent to handle

16   his own affairs; is that right?

17       A.    That's correct.

18       Q.    Okay.     And you had not been appointed his

19   guardian; is that correct?

20       A.    Not at that point, no.

21       Q.    By the way, is your name anywhere on this

22   Plea in Intervention?

23       A.    No.

24       Q.    Take your time.        You can look through it, if

25   you would like.




                                                             000911
                                                                  38



1        A.     No.

2        Q.     Okay.     Thank you, ma'am.

3        A.     Uh-huh.

4        Q.     Now, subsequently, after this was filed,

5    that's when you became a guardian, sometime, I guess,

6    in December?

7        A.     Yes.

8        Q.     That's because Derrick was incompetent,

9    legally incompetent to handle his affairs; is that

10   right?

11       A.     Yes.

12       Q.     And your guardianship gives you the right to

13   handle his affairs?

14       A.     Yes.

15       Q.     And you filed a subsequent Amended Plea in

16   Intervention in December or thereabouts; is that

17   correct?

18       A.     Yes.

19       Q.     To your knowledge, is -- well, how long had

20   it been since Derrick James had seen his mother?

21       A.     He hadn't seen her since they took her away,

22   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
                                                                  39



1    what, 12, 13, I believe.

2        Q.    Okay.     You never went to see Tanya James at

3    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

8    facility she stayed at before she went to Beretta

9    Court; is that correct?

10       A.    Yes.

11       Q.    And other than what you have tried to learn

12   about since this lawsuit was filed, you know nothing

13   about the living arrangement of Tanya James at

14   Beretta Court; is that correct?

15       A.    No.

16       Q.    You do know what was in the binder that you

17   recovered, correct?

18       A.    Yes.

19                     MR. PLUMMER:   Can I see Exhibit 1,

20   please?

21                     (Referenced document tendered to

22                     counsel.)

23       Q.    (By Mr. Plummer)       By the way, in your

24   inquiry about what happened to Tanya and how it

25   happened, you became aware that Esperanza Arzola,




                                                             000913
                                                                40



1    another resident, started the fire; is that correct?

2        A.   That wasn't until after I retained the

3    lawyer that I found out that.

4        Q.   Okay.   But that's still your understanding,

5    that she started the fire?

6        A.   Yes.

7        Q.   And -- okay.     Now, when you got this binder,

8    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

13   in it; is that correct?

14       A.   Yes.

15       Q.   And that Individualized Emergency Plan was

16   for Tanya; is that correct?

17       A.   Yes.

18       Q.   And part of that was a fire evacuation

19   procedure; is that correct?

20       A.   Yes.

21       Q.   This was, this was a, the binder for her at

22   the Beretta Court; is that right?

23       A.   Yes.

24       Q.   And in the Individualized Emergency Plan, it

25   talked about what to do in the event of a hurricane,




                                                        000914
                                                             41



1    what to do in the event of a flood, tornadoes.     It

2    even had what to do in the event of nuclear war and

3    terrorism.   Is that correct?

4        A.   Yes.

5        Q.   And the fire procedure in there, fire

6    evacuation procedure, said that the staff should lead

7    Tanya out physically by her hand, proceed to a

8    designated safe haven across the street and comfort

9    Tanya with reassuring words.    Is that what it says?

10       A.   Yes.

11       Q.   It also describes the circumstances in which

12   she lives in that four-member home, right?

13       A.   Yes.

14       Q.   The copy you got also had progress notes in

15   it, didn't it?

16       A.   Yes.

17       Q.   And the progress notes include progress

18   notes from Amuche Udemezue; is that correct?

19       A.   Yes.

20       Q.   These are basically a diary of what was done

21   every day?

22       A.   Yes.

23       Q.   By the staff?

24       A.   Yes.

25       Q.   Now, in addition to the lawsuit that you,




                                                        000915
                                                             42



1    the intervention you filed, you, you -- by the way,

2    in addition to Esperanza Arzola as being the person

3    you discovered who started the fire, you also felt

4    that Amuche Udemezue was also responsible for

5    starting -- for this loss; is that correct?

6        A.   Yes.

7        Q.   And you sued her initially also; is that

8    right?

9        A.   Yes.

10       Q.   And that lawsuit was filed with the original

11   intervention back in September of 2010, right?

12       A.   Yes.

13       Q.   And you remember that she gave, Amuche

14   Udemezue gave a deposition in February of 2011,

15   right?

16       A.   I was unaware what date; but, yes, I'm aware

17   she gave one.

18       Q.   And shortly after that, you dismissed her

19   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

24   responsible for not saving your sister, and then you

25   let her go.     Is that right?




                                                       000916
                                                                  43



1        A.   Yes.

2        Q.   What are you asking this jury to do for you

3    in this lawsuit?

4        A.   I just want justice --

5        Q.   Okay.

6        A.   -- for what was done.        I mean, she was

7    unable of capable of doing it on her own.        And if I

8    don't get a dime, I would like to have a head stone

9    for my sister.     I go to the grave site and see

10   nothing but grass.     If I could get a head stone out

11   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

17   BY MR. SPARKS:

18       Q.   When you were appointed guardian for

19   Derrick, that was in December 2010, was it not?

20       A.   Yes.

21       Q.   And subsequent to that, you filed an

22   amended -- First Amended Plea in Intervention; is

23   that right?

24       A.   Yes.

25       Q.   And in that Amended Plea in Intervention,




                                                             000917
                                                                44



1    you filed as Wylette Taylor, guardian of Derrick

2    James; is that right?

3        A.      Yes.

4        Q.      And that was in also December of 2010; is

5    that correct?

6        A.      Yes.

7        Q.      And you also filed an application and got

8    permission from the Probate Court Number 4, who

9    granted you a guardianship, to have the authority to

10   contract and act on behalf of Derrick James; is that

11   right?

12       A.      Yes.

13       Q.      And it also gave you back authority to when

14   the original lawsuit was filed in this matter, which

15   was September of 2010; is that right?

16       A.      Yes.

17       Q.      And all that was within the -- strike that,

18   Judge.

19                      And that's the authority that you are

20   operating on today; is that right?

21       A.      Yes.

22       Q.      Now, Mr. Plummer asked you what are you

23   looking for out of this.       Are you looking for

24   anything?     I mean, you are not trying to get anything

25   for yourself, are you?




                                                           000918
                                                                    45



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

5    book that you found there, that Mr. Plummer was

6    asking you questions about it --

7        A.     Yes.

8        Q.     Did you also see in there where it says what

9    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

13   jury, Judge.

14                     THE COURT:    Which exhibit is that?

15                     MR. SPARKS:    This is Intervenor's

16   Exhibit 2?

17                     THE COURT:    Thank you.

18       Q.     (By Mr. Sparks)      Let's see if I can get

19   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

23   Living Center to provide a safe environment for all

24   consumers.       In the event of a disaster or an

25   emergency, safety of the consumer and preservation of




                                                              000919
                                                                   46



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

5    was followed in reference to the situation giving

6    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

11   Honor.

12                    THE COURT:     Mr. Thweatt?

13                    MR. THWEATT:     Nothing, Your Honor.

14                    THE COURT:     Thank you, ma'am, you may

15   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

20   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.

25




                                                              000920
                                                                 47



1                           ANTHONIA UDUMA,

2    having been placed under oath, testified as follows:

3                       DIRECT EXAMINATION

4    BY MR. THWEATT:

5        Q.    Ms. Uduma, would you state your full name,

6    please.

7        A.    My name is Anthonia Uduma.

8        Q.    Are you the corporate representative for

9    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

12   individual capacity because you have been personally

13   sued as the owner of the house that burned down.       Is

14   that right?

15       A.    That's what I understand.

16       Q.    You understand your house burned down

17   September 4, 2008, do you not?

18       A.    Yes, I do.

19       Q.    As the corporate representative of Four J's

20   Community Living Center, Inc., you don't believe that

21   Four J's has any responsibility for this fire or the

22   injuries that resulted.     Isn't that right?

23       A.    I believe Four J's did everything that it is

24   supposed to do to make sure that the employees do

25   what they are supposed to do in case of fire.     I




                                                           000921
                                                                48



1    believe we did everything that needed to be done.

2        Q.     And because you believe that, Ms. Uduma, you

3    don't believe that Four J's has any responsibility

4    for this fire or the injuries that resulted; isn't

5    that correct?

6        A.     Based on the effort the company made to make

7    sure that the employees were trained and equipped to

8    handle emergencies, I don't believe they are

9    responsible for the fire.

10       Q.     Let me ask it very simply this way,

11   Ms. Uduma, do you believe that Four J's, your

12   company, has any responsibility for the fire or the

13   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

17   not legally responsible.     Is that your testimony?

18       A.     Yes.

19       Q.     The reason that you believe you are morally

20   responsible is because you know what happened that

21   night should not ever have happened.     Isn't that

22   correct?

23       A.     That's correct.

24       Q.     But the reason you are drawing a distinction

25   between the morality and the legality is because if




                                                           000922
                                                                   49



1    you tell this jury you are legally responsible, you

2    know they have the ability to issue a verdict against

3    your company.      Isn't that correct?

4        A.      That's not correct.

5        Q.      You don't believe that you personally have

6    any responsibility for this fire or the injuries that

7    result either, do you?

8        A.      I morally believe -- I mean, I morally

9    believe we are partly responsible for the fire.         But

10   legally, I have looked at everything.         The company

11   have looked at everything.         The state have looked at

12   all the documents.         And they find that there no way

13   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

16   whether you believe that you personally, separate and

17   apart from your company, have any responsibility for

18   this fire and the injuries that resulted.

19       A.      No.

20       Q.      Do you believe that you have any moral

21   responsibility, personally as separate and apart from

22   this company, for the injuries and the fire that

23   resulted?

24       A.      No.   [sic.]

25       Q.      So it's just your company that has a moral




                                                            000923
                                                                    50



1    responsibility; is that right?

2          A.   That's right.

3          Q.   But your company doesn't have a soul, does

4    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

9    was arrested and charged with arson on the night of

10   the fire, she was later deemed incompetent to stand

11   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

20   accepting responsibility for either yourself or for

21   your company for this fire, you are asking this jury

22   to blame Esperanza Arzola for the fire and the

23   injuries that resulted; isn't that right?

24         A.   I'm asking the jury to look at all the

25   evidence and then determine whether Four J's did




                                                               000924
                                                                 51



1    everything we are supposed to do, that should have

2    been done.

3        Q.      Are you aware that your attorneys filed a

4    motion to designate Esperanza Arzola as a responsible

5    party for this fire?

6        A.      That's correct.

7        Q.      And, therefore, you are asking this jury to

8    blame her for this fire, are you not?

9        A.      She's a competent adult who is just mild

10   mental retardation, and she set up the fire and she

11   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

14   guardian.

15       Q.      And, therefore, because you believe that she

16   was competent, you are asking this jury to blame her

17   for the entirety of the fire and the injuries; is

18   that right?

19       A.      It's not a word about blame.   So I'm just

20   letting the jury know who set the fire.

21       Q.      Was she to blame for the injuries that

22   resulted, in your opinion?

23       A.      I don't know about the word "blame."

24       Q.      Was she responsible for the injuries that

25   resulted, in your opinion?




                                                            000925
                                                           52



1        A.   She was responsible.   She is the one that

2    set the house on fire.

3        Q.   You don't believe that this fire resulted

4    from anything that any doctor did or failed to do;

5    isn't that right?

6        A.   That's correct.

7        Q.   You don't believe this fire resulted from

8    anything any nurse did or failed to do; isn't that

9    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

16   that correct?

17       A.   That's correct.

18       Q.   Now you would agree that the occurrence of

19   this fire was certainly a safety issue at Four J's,

20   was it not?

21       A.   No, I don't.

22       Q.   You don't agree that the fire was a safety

23   issue?

24       A.   I don't.

25       Q.   You don't believe that the fire was a




                                                      000926
                                                                53



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

6    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

9    knew that Esperanza Arzola had a history of violence

10   toward your staff; isn't that correct?

11       A.      That's correct.

12       Q.      You knew that she had tried to commit

13   suicide on several occasions?

14       A.      Yes.

15       Q.      You knew that Esperanza Arzola was bipolar

16   before this fire?

17       A.      Yes.

18       Q.      You knew that Esperanza Arzola was

19   schizophrenic before this fire?

20       A.      I'm not sure of that diagnosis, but --

21       Q.      Have you reviewed the notes of Dr. Kirk

22   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
                                                                       54



1    the company contracted to develop behavior plans for

2    Esperanza and other clients that were with Four J's.

3    And his job was to take a look and train the

4    employees and instruct them on what to do if

5    aggression -- if there is aggression or if Esperanza

6    tries to do aggression or tries to elope.         He

7    practically wrote down all the plans that the

8    employees should follow.

9                     MR. THWEATT:     Your Honor, I would offer

10   Dr. Kirk Lockwood's notes to Four J's Community Living

11   Center as a --

12                    THE COURT:     Which exhibit are you

13   referring to?

14                    MR. THWEATT:     Exhibit 49, Your Honor.     I

15   apologize.   We offer those into evidence at this time.

16                    THE COURT:     Any objection?

17                    MR. RAVAL:     Your Honor, we renew our

18   objection as to hearsay.

19                    THE COURT:     Approach the bench.

20                    (Bench discussion.)

21                    THE COURT:     Have you established a

22   hearsay exception?

23                    MR. THWEATT:     It goes to notice, Your

24   Honor.

25                    THE COURT:     Notice of what?




                                                              000928
                                                                     55



1                      MR. THWEATT:     She testified she did not

2    know that Ms. Arzola was schizophrenic.

3                      THE COURT:     Do you have any evidence

4    that she received those notes?          Have you established

5    any of that?

6                      MR. THWEATT:     I can ask her.

7                      THE COURT:     Right now, the objection is

8    sustained.

9                      (Open court.)

10                     THE COURT:     The objection is sustained.

11                     MR. THWEATT:     May I approach the

12   witness, Your Honor?

13                     THE COURT:     Yes.

14         Q.   (By Mr. Thweatt) Ms. Uduma, I'm handing you

15   Plaintiff's Exhibit 49, previously marked.          Do you

16   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

20   doctor.    But this document doesn't usually come to

21   me.    It goes to the case managers.        They are the ones

22   that handles all these documents.

23         Q.   The case manager is someone that works for

24   your company, correct?

25         A.   That's correct.




                                                             000929
                                                                     56



1        Q.    This document, Plaintiff's Exhibit 49,

2    indicates that it is addressed to Four J's Community

3    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

11   we offer Plaintiff's Exhibit 49 into evidence.

12                    MR. PLUMMER:     Counsel, may I see it,

13   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

22   showing you Esperanza Arzola -- Plaintiff's

23   Exhibit 44.      This is Esperanza Arzola's Annual

24   Individual Service Plan; isn't that right?

25       A.    Yes.




                                                             000930
                                                                   57



1        Q.      This document is prepared by Four J's, true?

2        A.      This document was prepared by the case

3    manager and the IBT members.       And the IBT members is

4    made up of the case manager, the nurse, the

5    psychologist, that they have directors, and the

6    direct care staff.

7        Q.      I'm just asking whether it was prepared by

8    Four J's.     And it was, wasn't it?

9        A.      Yes.

10       Q.      All right.    And we go to -- on page 2 of

11   Plaintiff's Exhibit 44, you see the portion that I

12   have highlighted there that says "the history

13   obtained from Richmond State School"?

14       A.      Yes.

15       Q.      I'll continue reading.     "Reveals that at age

16   12 Esperanza was admit to hospital overnight for

17   sexual abuse.       No further details of this incident

18   were available, nor the perpetrator of the abuse

19   situation identified.       Esperanza stated she began

20   drinking beer at age 14 and indicates that she has

21   experience with tobacco, cocaine and other

22   substances."

23                      Did I read that correctly?

24       A.      Yes.

25       Q.      "Esperanza stated that she had multiple




                                                           000931
                                                                 58



1    sexual partners.    Records also indicate that she has

2    had several sexually transmitted diseases in the past

3    and possibly traded sexual favors for drugs."

4    Continuing on in that paragraph:      "Records

5    indicate" --

6                    MR. THWEATT:   Highlight this here.

7        Q.   (By Mr. Thweatt)      "Records indicate that

8    Esperanza was emotionally, physically and sexually

9    abused by both biological parents to the extent of

10   their parental rights being terminated in November of

11   1998."

12                   Do you see that there?

13       A.   Yes.

14                   MR. THWEATT:   Highlight this portion

15   here.

16       Q.   (By Mr. Thweatt)      "According to the reports,

17   Ms. Arzola" -- Esperanza's mother -- "was aware that

18   her husband was sexually abusing the children but

19   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,

23   wasn't it?

24       A.   Yes.

25       Q.   Highlight this for you, on page 3 of




                                                           000932
                                                              59



1    Plaintiff's Exhibit 44.

2                     "Esperanza exhibited severe bouts of

3    self-abuse and depression.     Reportedly, the parents

4    would verbally assault Esperanza, blaming her for

5    their termination of parental rights and for the

6    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

11   unauthroized departure from Richmond, where they

12   picked her up and took her back to the Dallas area.

13   It was at this time when Esperanza became infected

14   with herpes as a result of the sexual activity

15   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

19   fire, correct?

20       A.   Yes.

21       Q.   It does appear in this document, Plaintiff's

22   Exhibit 44, a long history of multiple placements, a

23   variety of different homes.     Do you see that there?

24       A.   Yes.

25       Q.   You know that Esperanza, before this fire,




                                                        000933
                                                                  60



1    was taking several antipsychotic medications, do you

2    not?

3           A.   Yes.

4           Q.   She was taking antidepressants before this

5    fire?

6           A.   No.

7           Q.   She was not?

8           A.   She was not on antidepressant for fire.    She

9    was on antidepressant for depression and for all that

10   behavior dealing with that issues.

11          Q.   I'm not asking whether she was on

12   antidepressants for fire.

13          A.   Oh, I'm sorry.

14          Q.   I'm asking whether she was taking

15   antidepressants.      And she was, wasn't she?

16          A.   Yes, she was.

17          Q.   You knew that Esperanza's mother had

18   prostituted her when she was younger.      You knew that

19   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

22   all of those things that we have just heard about,

23   that Esperanza Arzola was competent on September 4,

24   2008 when she set that fire?

25          A.   Yes.




                                                           000934
                                                             61



1        Q.   Your company knew all of those things, as

2    well, about Esperanza Arzola, didn't they?

3        A.   Could you repeat that?

4        Q.   Your company knew all of those things about

5    Ms. Arzola, in addition to yourself; isn't that

6    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

11   Beretta Court Home?

12       A.   Yes.   We do not allow cigarette lighters.

13   It's not prohibited, but we do not allow the clients

14   to hold a cigarette lighter.

15       Q.   It's not prohibited, but we don't allow the

16   clients to have a cigarette lighter.   Is that your

17   testimony?

18       A.   That's my testimony.

19       Q.   Are there circumstances where a client might

20   be permitted to hold a cigarette lighter in the

21   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

25   smoke, we train the employees to hold the cigarette




                                                       000935
                                                                 62



1    lighter so that they will be able to go outside and

2    light it for them and then retain the cigarette

3    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

10   where we have to lock it up because of Esperanza's

11   self-injurious behavior.

12       Q.      Her self-injurious behavior, meaning she

13   tried to kill herself several times before the fire,

14   right?

15       A.      I know of two times.     I don't know of

16   several times.

17       Q.      On at least two occasions before this fire,

18   Ms. Arzola tried to kill herself; isn't that right?

19       A.      Yes.

20       Q.      And that's the reason why you would never

21   permit a weapon in the Beretta Court Home that you

22   owned.     Is that right?

23       A.      The reason the weapon -- we went by what the

24   psychologist put on the behavior therapy plan, and

25   that was that all sharp objects need to be locked up,




                                                            000936
                                                                  63



1    all liquid need to be locked up.     And we did all

2    that.    So we went step-by-step from what Dr. Lockwood

3    put on the behavior plan.

4        Q.     Dr. Lockwood never approved Ms. Arzola

5    having a cigarette lighter in her personal

6    possession, did he?

7        A.     No, he did not.   And that's why we did not

8    allow her to keep a cigarette lighter.

9        Q.     To your knowledge, was Ms. Arzola's room

10   ever searched to make sure that she did not have a

11   cigarette lighter so that she wouldn't hurt herself

12   or somebody else?

13       A.     The way the Home and Community-based

14   Services is structured, the room belongs to her; but

15   when she leaves to go to the bathroom, the staff will

16   go in there and clean up the room and fix up the bed

17   and fix up the dressers and hang her clothes.       But in

18   terms of searching her room, there was no reason to

19   search there because they are barely going to her

20   house to take care of her.

21       Q.     You could certainly search a room to

22   prevent, say, a suicide attempt, couldn't you?

23       A.     Everything that Dr. Lockwood put on the

24   behavior plan to prevent suicide attempt, we did not

25   have it in the room or in the house.     It was locked




                                                           000937
                                                                64



1    and she was not allowed to go there.     We bought her

2    elastic belt.    So there was nothing in the room that

3    the staff -- warned the staff to go and search.

4          Q.   Ms. Uduma, I'm just asking whether it was

5    possible for Four J's to search her room to make sure

6    that she didn't hurt herself or someone else.       That

7    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

10   her body by any Four J's staff to make sure that she

11   didn't have a cigarette lighter on her clothing?

12         A.   We cannot do that.   It's just like somebody

13   coming to my house and then search my body to search

14   me.    There was no reason for that.

15         Q.   Except for the distinction, Ms. Uduma, is

16   that you are the president of a company, you have a

17   college degree, you don't have this history of

18   psychotic behavior, suicide attempts, you are not on

19   medications.    That's a big distinction, wouldn't you

20   agree?

21         A.   I agree.

22         Q.   All right.   So neither you nor Four J's ever

23   did anything to ensure that Ms. Arzola didn't have

24   unsupervised access to a cigarette lighter.     Isn't

25   that correct?




                                                         000938
                                                                     65



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

5    her.        I'm just highlighting that you didn't search

6    her.        Right?

7           A.      No, we didn't.     I did not because I didn't

8    work at the house.          But the staff is not allowed to

9    search her.

10          Q.      The staff never searched her, and the staff

11   never searched her room, correct?

12          A.      That's correct.

13          Q.      All right.     You knew personally, Ms. Uduma,

14   that before the fire Jenny Wagner and Tanya James,

15   due to their disabilities, were completely helpless

16   in the event that a fire broke out in your house,

17   didn't you?

18          A.      The only person that was completely helpless

19   was Jenny Wagner.           Tanya James could walk and run.

20          Q.      Didn't you hear Mr. Plummer, your attorney,

21   read the Individualized Care Plan or emergency plan

22   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

25   a fire, she has to be walked out of the house by




                                                              000939
                                                                   66



1    hand, comforted with reassuring words and taken to a

2    safe place?        Didn't you hear him say that?

3        A.      Yes, he said that.     But she was not

4    helpless.     I mean, if you tell her, Tanya, let's go,

5    and grab her, she would go with you.        If you are

6    running, she would run with you.

7        Q.      What about Ms. Wagner?

8        A.      Ms. Wagner was the only one that needed

9    total care.

10       Q.      How do you know that Ms. James would do

11   those kinds of things if you were never at the house?

12       A.      Because I see her.     Sometimes I visit the

13   house, and I see how they did her.

14       Q.      If a fire broke out, you knew that Tanya

15   James and Jenny Wagner were totally reliant on others

16   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

19   alone in the event of a fire; isn't that right?

20       A.      That's correct.

21       Q.      That's what your Individualized Emergency

22   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

25   Four J's employee is, quote, never supposed to leave




                                                              000940
                                                                  67



1    your consumers unattended.     Isn't that correct?

2        A.   Yes.

3        Q.   That's something that you knew before this

4    fire, right?

5        A.   Yes.

6        Q.   That's something your company knew before

7    this fire, correct?

8        A.   Yes.

9        Q.   But there was only one staff member on duty

10   the night of the fire; isn't that right?

11       A.   Yes.

12       Q.   Even though Four J's own documents in this

13   case show the ratio is supposed to be one person --

14   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

22   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

25   houses that have only three clients.       And before this




                                                          000941
                                                                  68



1    training documents were developed, the state had not

2    passed a rule to expand it to four people in the

3    house.   Before it was just three people, three

4    clients per house.    So then when they cut the rate,

5    they allowed the providers to add one more to make it

6    four bedroom.    So we still have many houses that have

7    only three clients in it.

8        Q.   Your policy, Ms. Uduma, right here in this

9    document, Plaintiff's Exhibit 37, says, "Generally,

10   the shift ratio of one staff to three consumers."

11   That's what it says, doesn't it?

12       A.   This is not a policy.       This is a training

13   guideline that we use to train the staff.

14       Q.   You use this document to train residential

15   staff, right?

16       A.   Yes.    We use it to train the residential

17   staff, to inform them that the house that they are

18   going to work belongs to the clients.       So before they

19   use the phone or use anything in the house, they have

20   to get -- to take permission from the clients.       So

21   that's what this document was used, to train them on

22   abuse and neglect.

23                   MR. THWEATT:     Your Honor, I object to

24   the nonresponsive portion of the answer.

25                   THE COURT:     Please answer the question




                                                          000942
                                                                    69



1    that is asked.

2        Q.      (By Mr. Thweatt)    And if you have to put two

3    people into the home, rather than one, to take care

4    of the residents who live there, that costs Four J's

5    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

8    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

12   Four J's to staff two people in a group home than one,

13   isn't it?

14       A.      Yes.

15       Q.      Staffing two people in a home where at least

16   one of the persons who lives there is completely

17   helpless would increase the safety response for the

18   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

21   home, where at least one of those residents, like

22   Jenny Wagner, was completely helpless in a fire would

23   certainly increase the safety response of the staff

24   there in the event of a fire.        Isn't that right?

25       A.      I don't really know if it would increase the




                                                              000943
                                                                  70



1    safety of that fire because of the panic, I mean, you

2    still will have it.

3        Q.   If there is only one staff member on duty,

4    Ms. Uduma, when a fire occurs, at least one of the

5    people in that house at Beretta Court obviously would

6    have been left unattended; isn't that right?

7        A.   If the staff panic and run outside, like the

8    one that I had they ran, it would still leave the

9    clients unattended.

10                   MR. THWEATT:     Objection, nonresponsive.

11                   THE COURT:     Please answer the question.

12       Q.   (By Mr. Thweatt)       Ms. Uduma, if there is

13   only one staff member on duty the fire occurs --

14       A.   Yes.

15       Q.   -- and at about least one of the people in

16   that house, like Jenny Wagner, is completely helpless

17   in the event of a fire, somebody would have had to

18   have been unattended while the staff member attended

19   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

24   her up, stand up, her out of the bed and walk out of

25   the house with her; isn't that right?




                                                          000944
                                                                71



1        A.      That's right.

2        Q.      So the other three people who lived there in

3    that house would have been left unattended, true?

4        A.      Sir, I am misunderstanding your last

5    question.     If you can repeat the last part, then I

6    will be able to answer.

7        Q.      There are safety rules set up by Four J's to

8    ensure that nobody gets burned or killed in the event

9    of a fire, aren't there?

10       A.      Yes.

11       Q.      Those rules require that a staff member

12   never leave Jenny Wagner unattended in the event of a

13   fire, right?

14       A.      Yes.

15       Q.      Those rules also require that a staff member

16   never leave Tanya James unattended in the event of a

17   fire, correct?

18       A.      No client should be left unattended in the

19   case of a fire.

20       Q.      And if there are four clients and one staff

21   member, simple mathematics tells you, as an

22   accounting major, someone with a master's degree in

23   accounting, that one of those four people, at least,

24   is going to be left unattended while the staff member

25   tends to that person and gets them out of the house,




                                                           000945
                                                                  72



1    right?

2        A.      That is why, when we are placing the clients

3    in the home, we only put one person that requires

4    total care.        The other ones, you can at least shout

5    or tell them run, they will be able to run.        So

6    that's why we structure the group homes like that.

7        Q.      You asked for a clarification of my

8    question.     I provided it to you, Ms. Uduma.     Do you

9    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

14   the night of that fire, weren't they?

15       A.      That's what I was made to -- I was not there

16   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

20   she ran out of the house?

21       A.      She sure did.

22       Q.      Meaning she left Tanya and Jenny back by

23   themselves, right?

24       A.      Yes.

25       Q.      Let me show you a picture from Plaintiff's




                                                             000946
                                                                 73



1    Exhibit 26.       This is page 68 of Plaintiff's

2    Exhibit 26.

3                      There is a fire extinguisher in that

4    kitchen in the home, wasn't there, the night of the

5    fire, Ms. Uduma?       Do you see that?

6        A.     Yes.

7        Q.     Here is another view of it.     Plaintiff's

8    Exhibit 26.

9                      Nobody used that fire extinguisher that

10   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

13   extinguisher?

14       A.     She said she panicked and run out.

15       Q.     She never told you she used the fire

16   extinguisher, did she?

17       A.     She did not.

18       Q.     Does that look like a fire extinguisher

19   that's been used to you?

20       A.     I wouldn't know by just looking at the

21   picture.

22       Q.     Let me show you another picture from

23   Plaintiff's Exhibit 26.       This is page 76 of

24   Plaintiff's Exhibit 26.

25                     This is a picture of the rear door in




                                                          000947
                                                                 74



1    that home.     You see that lock there?

2        A.     Yes, sir.

3        Q.     Requires a key to unlock it; isn't that

4    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

9    other doorknob off in their efforts to rescue the

10   people who were inside?     Do you see that?

11       A.     Yes, sir.

12       Q.     Did you give a key to the staff member on

13   duty that night?

14       A.     I don't usually give keys to the staff

15   members.     The supervisors will give keys.   But I know

16   when I took the fire marshal to that house, there was

17   always a key in the drawer near the door, where they

18   usually would get it out and open the back door for

19   the fire marshal.

20       Q.     Why did you take the fire marshal to the

21   house?

22       A.     Because when you have a four-bed, the HCS

23   policy and procedure require that every year the fire

24   marshal will have to come and do inspection to make

25   sure that all the fire systems are working, that the




                                                          000948
                                                                 75



1    house is in compliance with the state fire code.

2        Q.     Because you owned the house and you had to

3    escort the fire marshal through the premises, right?

4        A.     No.    This was done by Four J's, but I

5    usually take the fire marshals.      It has nothing to do

6    with group home, because the house was leased to the

7    company.

8        Q.     You had actual personal knowledge of the

9    risk that a fire would present to Jenny and Tanya,

10   didn't you?

11       A.     No.

12       Q.     You never had any personal knowledge of the

13   risk that a fire would present to incapacitated

14   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,

17   then, that it presents a risk to their person and

18   their security and their safety and their health

19   well-being?

20       A.     Yes.

21       Q.     Despite the knowledge of that risk,

22   Ms. Uduma, you had never installed overhead

23   sprinklers in the Beretta Court house that you owned,

24   did you?

25       A.     You keep referring to me.    The house was




                                                          000949
                                                                        76



1    leased to the company.

2        Q.     I'm asking you personally.          You owned the

3    house, right?

4        A.     Yeah.     When you --

5        Q.     Despite your knowledge --

6                       MR. PLUMMER:     Excuse me, Your Honor.     I

7    object to arguing, to interrupting the witness and

8    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

12   pending.

13                      Here's my question:     Despite the

14   knowledge, that you personally had, of the risk of

15   fire that presented to Jenny and Tanya, you never

16   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

21   overhead sprinklers in the house.          And you didn't,

22   did you?

23       A.     No, I didn't.

24       Q.     You agree with me that, as the owner of the

25   house, you had a responsibility to keep that house




                                                               000950
                                                                 77



1    safe for the mentally retarded persons who you knew

2    were living there, don't you?

3        A.   Which I did.

4        Q.   You agree with me that, as the president of

5    Four J's Community Living Center, your company also

6    had a responsibility to keep that house safe as well,

7    right?

8        A.   That's correct.

9        Q.   You would agree with me that overhead

10   sprinklers would have made the Beretta Court

11   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

14   dowse a fire that's growing, just like the sprinklers

15   we have in our courthouse here, that would make that

16   safer?

17       A.   I, I don't know.     Honestly, I don't know.

18                 THE COURT:     We're going to take our

19   mid-morning break.   It's 10:00 o'clock.    We will start

20   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
                                                                   78



1                   THE COURT:     Thank you.     Please be

2    seated.

3                   Mr. Thweatt, you may continue.

4                   MR. THWEATT:     Thank you, Your Honor.

5        Q.    (By Mr. Thweatt)     Ms. Uduma, you agree that

6    you could have installed a fire alarm system in your

7    house that would have automatically notified the fire

8    department in the event of a fire.         You agree that

9    could have been done, don't you?

10       A.    The fire alarm was installed.

11       Q.    It didn't automatically notify the fire

12   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,

15   Ms. Uduma.    I'm asking whether or not it would

16   automatically notify the fire department.

17       A.    We followed all the rules and guidelines by

18   the City of Houston and by the Department of Aging

19   and Disability.

20       Q.    Did it automatically notify the fire

21   department or not?

22       A.    The fire alarm, people installed it.           We

23   paid them to install it.      They followed all the

24   guidelines.   So I don't know if it's supposed to

25   notify the fire department or notify somebody else.




                                                              000952
                                                                      79



1    But I don't know.        We contracted them to do it.

2        Q.      Do you know a gentleman by the name of Rick

3    Overton?

4        A.      I don't know Rick Overton.        I only met Rick

5    during a deposition.

6        Q.      I'm sorry.     Rick Overholt.     I misspoke.

7        A.      I don't know the person.        I only met him

8    when we had the deposition.        Because the person that

9    always came to install all the fire alarm for

10   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 &

14   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

17   before his deposition in this case; is that right?

18       A.      That's right.

19       Q.      Are you aware that Mr. Overholt has

20   testified that he installed fire alarm systems in

21   other houses that you owned that automatically

22   notified?     Are you aware of that?

23       A.      His company, yes.     OMNI Alarm.

24       Q.      Are you aware that he also testified that he

25   had interaction with you whenever he needed to access




                                                                 000953
                                                              80



1    your Beretta Court Home or any other homes that you

2    owned?

3        A.    He contact me when he schedule all the

4    inspections and which houses they are going to go in.

5        Q.    You could have installed overhead sprinklers

6    but you chose not to, right?

7        A.    That's not true.

8        Q.    You could have installed a fire alarm system

9    that notified the fire department automatically, but

10   you chose not to, right?

11       A.    That's not true.

12       Q.    You didn't do those things because you

13   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

16   agree it would have been safer for the residents in

17   the Beretta Court Home?

18       A.    I don't know that.

19       Q.    How many people does Four J's currently

20   employ?

21       A.    I don't know the exact number because I'm

22   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

25   more than a hundred.




                                                         000954
                                                                      81



1        Q.      When was the company founded?

2        A.      The company was founded in 1996.        And then

3    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    7.7 million, correct?

8        A.      I'm sorry.   That was 2008 that it grossed

9    7.7 million.

10                    MR. THWEATT:     Your Honor, I'd offer

11   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

16   approach?

17                    THE COURT:     Yes.

18                    (Bench discussion.)

19                    THE COURT:     All right.     So you are

20   offering the tax returns for Four J's, and your

21   objection is relevance?

22                    MR. PLUMMER:     Relevance and overly

23   prejudicial.     The only relevancy, possible relevance

24   of financial information would be net worth

25   information.     So otherwise, all this is prejudicial,




                                                                 000955
                                                                       82



1    and there is plenty of information in the tax return

2    that has nothing to do with this lawsuit.         So

3    prejudicial, not relevant.

4                     THE COURT:     Like what, what is in here

5    that has nothing to do with the lawsuit that would

6    unfairly prejudicial?

7                     MR. PLUMMER:     Well, may I see a copy of

8    the tax return, Judge?

9                     THE COURT:     Yes.

10                    (Referenced document tendered to the

11                    counsel.)

12                    MR. PLUMMER:     Number one, schedules.      I

13   don't see how those are relevant to anything --

14                    THE COURT:     How are they unfairly

15   prejudicial?

16                    MR. PLUMMER:     How much money this

17   company makes has nothing to do with the issues before

18   the Court.     And before the jury.      All the -- the only

19   reason you offer this is to inflame the jury about

20   somebody's income and success.         It's not relevant to

21   liability issues.     It's not relevant to the damage

22   issues.   And it's only relevant, if anything, on the

23   issue of exemplary damages.        And only net worth

24   information is relevant in that context, not gross

25   income, not net income, not expenses, only net worth.




                                                             000956
                                                                    83



1                     THE COURT:     Okay.   What other evidence

2    do you have on net worth, Mr. Thweatt, besides these

3    tax returns and her testimony?

4                     MR. THWEATT:     That's all, Your Honor.

5                     THE COURT:     So are, are you going to

6    have an expert witness that is going to tie this or

7    explain how you develop net worth from someone's tax

8    returns or income statements?

9                     MR. THWEATT:     No.

10                    THE COURT:     What in those tax returns

11   show Four J's net worth?

12                    MR. THWEATT:     Total assets, Judge.

13   Item F on both of the returns, I believe, is probative

14   to the issue of net worth.

15                    THE COURT:     Does this show anything

16   about their liabilities?

17                    MR. THWEATT:     I believe every tax return

18   would show that.     I don't know -- there is a section

19   for bad debts.

20                    THE COURT:     So nothing beyond the first

21   page of each of these tax returns is really what you

22   are --

23                    MR. THWEATT:     I think that's correct,

24   Judge.

25                    THE COURT:     Why wouldn't limiting




                                                              000957
                                                                   84



1    Exhibits 41 and 42 to just the first pages of each

2    return be relevant?

3                  MR. PLUMMER:     First of all, I'm not sure

4    how a calculation of value and assets is germane.

5    That's number one.     I don't know whether it's a

6    value --

7                  THE COURT:     That's an argument towards

8    letting in the rest of the tax return, if I've got to

9    look at the rest of the return to find out how they

10   get to total assets.

11                 MR. PLUMMER:     I understand that, Judge.

12   I don't think the tax return is relevant at all.        But

13   if the Court were to allow the tax return, I agree

14   with the Court that the first page would be the only

15   portion that should be admitted.     But it would be

16   admitted over my objection.     We have already had

17   testimony with regard to that.     And that can be

18   elicited -- this asset value can be elicited on

19   testimony without the document being admitted into

20   evidence.

21                 MR. THWEATT:     It also does go to show

22   that the funds -- they had funds to spend money on

23   safety as well.

24                 MR. PLUMMER:     That's not an issue.

25                 THE COURT:     All right.   All right.




                                                            000958
                                                                    85



1                     MR. PLUMMER:     Judge, this is a classic

2    case of somebody saying, look, you have got a lot of

3    money and therefore you ought to pay.         That's what

4    this is about.

5                     THE COURT:     I understand that.   But

6    there are remedies in the Civil Practices and Remedies

7    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

11   they need it, all they have to do is to question her

12   about that asset value.       And if she testifies to what

13   it shows, that's it.     The document need not go into

14   evidence.

15                    MR. THWEATT:     I can certainly agree to

16   the first page of both exhibits, if that's a concern.

17                    MR. PLUMMER:     We aren't going to agree

18   to any of it.

19                    THE COURT:     So the testimony she just

20   gave plus Exhibits 41 and 42, that's the sum total of

21   your evidence as to the net worth of Four J's?

22                    MR. THWEATT:     Well, I plan on asking her

23   a few more questions, but I don't have any more

24   documentary evidence, Judge.

25                    THE COURT:     All right.   Right now, I'm




                                                            000959
                                                                    86



1    going to sustain the objection.         I will allow you,

2    obviously, if you need to use these documents to

3    refresh the witness' recollection or if based on how

4    her testimony proceeds you need to impeach her, I will

5    reconsider their admissibility.

6                   MR. THWEATT:     Okay.     Understand.

7                   THE COURT:     But right now, 41 and 42,

8    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

12   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

15   Four J's today?   If you were going to sell it to a

16   potential buyer, how much would you tell them it's

17   worth?

18       A.   About 2 million or 4 million.         Between 2 and

19   4 million.

20       Q.   You base that upon the U.S. tax returns that

21   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,

25   because of the bad economy the state has come back




                                                             000960
                                                                   87



1    and cut all the funding for it.        So that is making it

2    difficult even to pay the employees right now because

3    of the bad economy.

4        Q.     In 2008, it was worth more than 2 million,

5    wasn't it?

6        A.     I believe so.

7        Q.     It was worth at least 4 million in 2008,

8    wasn't it?

9        A.     Maybe.

10       Q.     Well, don't your tax returns reflect an

11   asset value of at least $4 million for the company in

12   2008?

13       A.     I don't remember what it --

14       Q.     Would you like me to show your tax return to

15   you for 2008 to refresh your recollection?

16       A.     No.   You already told me what it is.

17                    THE COURT:     You may approach the

18   witness.

19                    MR. THWEATT:     Thank you, Your Honor.

20       Q.     (By Mr. Thweatt)      I'm handing you

21   Plaintiff's Exhibit 41, Ms. Uduma.

22                    (Referenced document tendered to the

23                    witness.)

24       Q.     (By Mr. Thweatt)      Do you see that number

25   right there?




                                                            000961
                                                                   88



1        A.   Yes.

2        Q.   4.3 million?

3        A.   Yes.

4        Q.   And I think you told us earlier that there

5    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

9    my offer of Plaintiff's Exhibits 41 and 42 at this

10   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

14   hundred employees, you told us.       What about you

15   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

20   that burned down --

21       A.   Yes.

22       Q.   -- where one person unfortunately died,

23   right?

24       A.   Yes.

25       Q.   What is your personal net worth?




                                                            000962
                                                                  89



1                  MR. PLUMMER:     Objection, relevance.

2                  THE COURT:     Come on up.

3                  (Bench discussion.)

4                  THE COURT:     Have either the Plaintiff or

5    the Intervenors pleaded for exemplary damages against

6    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

11   relevant?

12                 MR. PLUMMER:     They are entitled to net

13   worth information in exemplary damages cases.       It is

14   just totally irrelevant in this case, but I understand

15   the Court's question.

16                 THE COURT:     I've got a live claim for

17   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

25   question.




                                                             000963
                                                                     90



1                      THE COURT REPORTER:     Question:   What is

2    your personal net worth?

3        A.     I believe I never really sat down and

4    calculated what my personal net worth is because most

5    of the houses I lease, we owe mortgages on them,

6    which is -- I don't really know without sitting down

7    and adding it up.

8        Q.     (By Mr. Thweatt)       Are you a millionaire,

9    Ms. Uduma?

10                     MR. PLUMMER:     Judge, I'm going to object

11   to that --

12                     THE COURT:     Overruled.

13                     MR. PLUMMER:     -- on relevance.

14                     THE COURT:     Overruled.

15       Q.     (By Mr. Thweatt)       Are you a millionaire,

16   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

21   month from Four J's Community Living Center, correct?

22       A.     Yes.

23       Q.     You pay yourself a salary of $8,000 a month

24   from Four J's Day Activity Center, another company

25   you own.     Isn't that also right?




                                                            000964
                                                                  91



1        A.      That's right.

2        Q.      And looking at Plaintiff's Exhibit 33, which

3    was provided to me by your attorneys, there is a list

4    of properties owned by Anthonia Uduma in the Houston

5    area, right?

6        A.      Yes.

7        Q.      You also own properties in Corpus Christi

8    and Beaumont, Texas, true?

9        A.      True.

10       Q.      Every property that is listed on this

11   Plaintiff's Exhibit 33 is a house that you own and

12   lease to Four J's, with the exception of this house

13   here, 6519 Anthonia Lane in Richmond, Texas.        That's

14   your personal residence, isn't it?

15       A.      There are some houses that we lease from

16   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

20   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

25   and a half bathrooms?




                                                          000965
                                                                     92



1                   MR. PLUMMER:     Excuse me.     Objection,

2    relevance.   May we approach?

3                   THE COURT:     Overruled.

4                   MR. PLUMMER:     Judge, may we be heard on

5    this?

6                   THE COURT:     Come on up.

7                   (Bench discussion.)

8                   MR. PLUMMER:     What does how many

9    bedrooms she has in her personal house have to do with

10   the issues in this lawsuit, Judge?         It's not relevant.

11   It's just designed to prejudice this lady before this

12   jury.   It's outrageous.    It's ridiculous.

13                  THE COURT:     Your response, Mr. Thweatt?

14                  MR. THWEATT:     Everything that I do at

15   trial is not designed to prejudice the Defendants.

16   The question is whether it's substantially -- whether

17   any prejudice is substantially outweighed by the

18   probative effect.   She has testified has never

19   calculated her net worth.      She doesn't know.     The jury

20   may have questions about what her net worth is.         This

21   is one of the ways that we can establish that with the

22   size of her personal residence and any other assets

23   that she may maintain.

24                  THE COURT:     Mr. Sparks, you have

25   anything to add?




                                                            000966
                                                                     93



1                       MR. SPARKS:     I think it is actually

2    relevant, and it goes to net worth when she says she

3    doesn't know.

4                       THE COURT:     I think it's relevant.

5    We're getting closer to where we are starting to get

6    to where the probative value is out weighed.           We're

7    not quite there yet.       So let's tighten this up and

8    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

13   the question read?

14                      THE COURT:     Repeat your question.

15       Q.     (By Mr. Thweatt)        Ms. Uduma, the house that

16   you own at 6519 Anthonia Lane in Richmond, Texas, has

17   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

22   Four J's Community Living Center, true?

23       A.     True.

24       Q.     You are the sole shareholder of that

25   company?




                                                                000967
                                                                 94



1          A.    Yes.

2          Q.    You are the only corporate officer, right?

3          A.    Yes.

4          Q.    There have never been any other corporate

5    officers of Four J's other than you, correct?

6          A.    Correct.

7          Q.    You are now the president and CEO, just like

8    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

13   of the property located at 1635 Beretta Court, true?

14         A.    True.

15         Q.    There are no other owners, other than you,

16   for that Beretta Court property, right?

17         A.    Yes.

18         Q.    There have never been any other owners in

19   the past, other than you, of that property, correct?

20         A.    It was bought from someone who used to own

21   it.

22         Q.    While you owned it.   Nobody owned it jointly

23   with you.

24         A.    No.

25         Q.    Has the property been rebuilt since the fire




                                                         000968
                                                               95



1    on September 4, 2008?

2        A.   There was modifications made to accommodate

3    Jenny's need.

4        Q.   No.    That's not my question.   Let me ask it

5    again.

6                    Has the property, Beretta Court, been

7    rebuilt since the fire in September 2008?

8        A.   No.    No.

9        Q.   If it were to be rebuilt, you would be the

10   person to make that decision, true?

11       A.   Yes.

12       Q.   You pay the property taxes that are due and

13   owing on that property, correct?

14       A.   Yes.

15       Q.   You and you alone are the person that took

16   out the loan to finance the purchase of that Beretta

17   Court house, right?

18       A.   Yes.

19       Q.   You lease that Beretta Court house to your

20   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

25   tenant, on behalf of your company, your company would




                                                        000969
                                                                      96



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

4    exists between you personally and your company as a

5    tenant, all right, let's say Four J's Community

6    Living Center, as a tenant, wants to enforce the

7    lease between you and the company.          Are you with me?

8          A.   Okay.

9          Q.   In order to enforce that lease, your company

10   would have to sue you personally to do that, wouldn't

11   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

16   be the only person with authority to even authorize a

17   lawsuit against yourself; isn't that right?

18         A.   Yes.

19         Q.   And, likewise, if you wanted to enforce that

20   lease as the owner of the company -- I'm sorry, as

21   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

25   wanted to enforce that lease as the landlord, as the




                                                                000970
                                                               97



1    owner of the house, you would have to sue your

2    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

7    here, Ms. Uduma, with regard to the property at

8    Beretta Court, is that you own it and you control it,

9    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

13   control it anymore.

14       Q.   Well, you control access to the Beretta

15   Court property, don't you?

16       A.   No, I did not.

17       Q.   A company called OMNI Fire & Security

18   Systems, we have talked about, installed the fire

19   alarm system in that house, didn't they?

20       A.   Yes.

21       Q.   And they would inspect that property at

22   least annually, true?

23       A.   Yes.

24       Q.   When there was something major with the

25   alarm system or repairs, anything like that, OMNI




                                                          000971
                                                                98



1    would call you rather than someone else at Four J's,

2    wouldn't they?

3        A.   Yes.     They are supposed to.

4        Q.   Before inspection of your property at

5    Beretta Court, OMNI would call you and request to

6    have you send a supervisor over there to let them in,

7    right?

8        A.   Yes.

9        Q.   And OMNI inspects and handles all the fire

10   alarm services for all of your more than thirty

11   properties in the Houston area, don't they?

12       A.   No.

13       Q.   If Mr. Overholt testifies differently than

14   that, is he going to be telling the truth?

15       A.   No.     We have -- out of the properties we

16   have in Houston, it's not all of them that are four

17   bedrooms that need four clients.        And according to

18   the Department of Aging and Disability rules and

19   regulations, if you don't have four people in the

20   house, you don't have to have a smoke alarm.        So I

21   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
                                                                99



1        Q.   (By Mr. Thweatt)    Ms. Uduma, you visited the

2    Beretta Court property that you owned on many

3    occasions, correct?

4        A.   Yes.

5        Q.   Based on upon everything you have talked

6    about, you would agree that you control that property

7    as the premises owner, don't you?

8        A.   It was leased to Four J's, so Four J's

9    controlled the --

10       Q.   That's not my question.

11                   My question is:   Do you agree that you,

12   as the property owner, control that premises?

13       A.   No, I don't.

14       Q.   And the reason you don't is because you

15   think that Four J's, the company that you own one

16   hundred percent of, was the premises occupier; is

17   that right?

18       A.   The Four J's that I own lease the property

19   to the clients that lived in there.

20       Q.   You agree that Four J's is responsible for

21   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

24   company, the company that you own, should be held

25   responsible for the actions or inactions of its




                                                        000973
                                                              100



1    employees?

2        A.   Could you repeat the question.

3        Q.   You don't agree, Ms. Uduma, as the president

4    of the company that you are the one hundred percent

5    owner of, that your employees at Four J's, if they do

6    something wrong that your company cannot be held

7    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

12   more serious than that?

13       A.   The reason I say that, because the Four J's

14   as a company did everything that needed to be done in

15   bringing outside help, training employees.     The

16   reason I am saying that Four J's is not responsible

17   for it is because the staff panicked.     So there is

18   really no way you can determine what will happen in

19   case of emergency.   If the staff panicked, I don't

20   think there is any way we could have prevented that.

21       Q.   You know that one of the reasons you train

22   employees is to prevent them from panicking in an

23   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
                                                                101



1    you know that the reason that you train employees is

2    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

6    stand in this case and they tell this jury that they

7    weren't properly trained as to how to respond in the

8    event of an emergency, I suppose you think that they

9    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

12   never be sacrificed because of money?

13       A.     Yes.

14       Q.     If you had spent more money on this house,

15   with overhead sprinklers and a fire alarm system that

16   could have notified automatically to the fire

17   department, the house would have been safer, wouldn't

18   it have?

19       A.     If the fire -- if the OMNI fire alarm system

20   that I contracted had made a proposal that you need a

21   sprinkler in this house or if the Department of Aging

22   and Disability, when I sent all the documents of the

23   people that's going to live in that house has told

24   me, yes, this house will need a sprinkler system, I

25   would have put it.     But it's no way -- I'm not a fire




                                                        000975
                                                                      102



1    person.     There is no way I would have known what

2    is -- what -- that the alarm system needed to be

3    monitored or not monitored.            That's why I contracted

4    OMNI Fire Alarm to do all that and give me all the

5    recommendations.

6        Q.      Ms. Uduma --

7                      MR. THWEATT:     May we have the last

8    question read back, Your Honor?

9                      THE COURT:     No.     Just ask another

10   question.

11       Q.      (By Mr. Thweatt)      If you had put overhead

12   sprinklers in that house, Ms. Uduma, and you had put

13   a fire alarm system in that house that would have

14   automatically notified the fire department, wouldn't

15   you agree that that house would have been much safer

16   on September 4, 2008 when that fire started?

17       A.      Sir, sir --

18       Q.      It's a yes or no question.         You can either

19   agree or disagree.

20       A.      I don't know.      I don't know, let me put it

21   that way.

22       Q.      You don't know?

23       A.      No.

24                     MR. THWEATT:     I have no further

25   questions, Your Honor.




                                                                 000976
                                                                    103



1                     THE COURT:     Mr. Sparks?

2                     MR. SPARKS:     Just a few, Your Honor.

3                          CROSS-EXAMINATION

4    BY MR. SPARKS:

5        Q.   Ms. Uduma, how are you doing?

6                     Isn't it true that you visited that home

7    on many occasions, the Beretta Court property?

8        A.   Yes.     During the annual fire marshal

9    inspection, I did.

10       Q.   You are the one that gave access to the fire

11   marshals, are you not?

12       A.   No, I am not.        The supervisor usually open

13   the house.   For me, I normally don't have keys to the

14   house.

15       Q.   So you didn't testify earlier that you took

16   the fire marshal to the house and that keys allegedly

17   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

20   go in with the fire marshal.        They will do inspection

21   on the fire system and everything, and then I will

22   open the drawer and open the back door.

23       Q.   So you are aware, then, that that deadbolt

24   lock was on that back door?

25       A.   Yes.




                                                             000977
                                                                104



1        Q.      And, in fact, you even unlocked that door

2    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

5    have, did you not previously testify that this is the

6    only property, allegedly, that had a deadbolt lock on

7    it like this?

8        A.      To my knowledge, yes.

9        Q.      And isn't it the reason why that property

10   was the only one that had it on there was to prevent

11   Esperanza Arzola from eloping and leaving the

12   property when she wanted to?

13       A.      Well, I don't really know, because that

14   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

17   have been the one that started and determined that.

18   I don't know if it was because of Esperanza.     I don't

19   remember.

20       Q.      So you don't know why it was on there, but

21   you were aware that it was on there?

22       A.      Yes.

23       Q.      And having opened the door on one, at least,

24   occasion, if not more, then you never took any

25   actions to remove it, did you?




                                                           000978
                                                                 105



1        A.     No.    Because I knew there was a key right

2    there.     Each staff had a pair of keys, the front door

3    and the book door.      Plus that one in the drawer in

4    case they didn't have it.      That's what the

5    supervisors told me, and that's what the employees

6    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

12   told you is accurate, do you?

13       A.     I know they have to have a key in order for

14   them to get in because these clients that they have

15   during the daytime.      So each staff have to have a key

16   to get into the house.

17       Q.     I don't mean the front door.    I'm talking

18   about the back door.

19       A.     They have two keys.    So which one of the

20   employees showed me when they have the fire that she

21   still has her own.

22       Q.     So you were certainly aware that that back

23   door had a deadbolt lock on it, and you never did

24   anything to remove it; is that correct?

25       A.     Yes.




                                                          000979
                                                                    106



1                     MR. SPARKS:     Pass the witness, Your

2    Honor.

3                     THE COURT:     Mr. Plummer.

4                     MR. PLUMMER:     Judge, we will reserve our

5    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

10   witness.

11                    MR. THWEATT:     Your Honor, we will call

12   Chiaka Irondi.

13                    THE COURT:     Spell that for our court

14   reporter, please.

15                    MR. SPARKS:     We have already,

16   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.

22

23

24

25




                                                            000980
                                                                 107



1                           CHIAKA IRONDI,

2    having been placed under oath, testified as follows:

3                         DIRECT EXAMINATION

4    BY MR. SPARKS:

5        Q.   Good morning, Ms. Irondi.      How are you

6    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

11   that correct?

12       A.   Yes, I do.

13       Q.   And are you a former employee of Four J's

14   Community Living Center, Inc.?

15       A.   Yes, I am.

16       Q.   When did you start living -- working there,

17   do you recall?

18       A.   I think around, I tried to decide.      It

19   should be 2009 or 2008.    I can't remember the actual

20   date.

21       Q.   Can you speak a little louder?      I'm having a

22   little problem hearing you.

23       A.   Around 2009.

24       Q.   Around 2009?

25       A.   Yeah.




                                                           000981
                                                                 108



1           Q.    So this fire took place in 2008.

2           A.    So I left before the fire, so it should be

3    2008.

4           Q.    2008?

5           A.    Yeah.

6           Q.    Okay.   And you started working there

7    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

12   James?

13          A.    Well, I'm her caregiver when I was working

14   there.      I used to be her caregiver, I take care of

15   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

20   there.      She can't walk.   She is in a wheelchair, so

21   we assist her in everything.

22          Q.    What about Esperanza Arzola?

23          A.    Yeah.   Esperanza is the only one that is

24   aggressive among all the clients we have.

25          Q.    When you say aggressive, what do you mean?




                                                          000982
                                                                      109



1        A.      She can fight with stuff.         She run away

2    sometime.     She easily gets annoyed, aggravated.

3        Q.      Were you ever provided keys to the property

4    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

9    there, were you ever given keys to the property,

10   Beretta Court?

11       A.      Yes.     When I started working, I was given a

12   front door key and a back door key.            But later, the

13   back door key was misplaced, couldn't find it before

14   I left.     Then when I left, I don't know if they ever

15   found it or not.

16       Q.      Did you ever make requests of anyone to have

17   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

24   objection?

25                       MR. PLUMMER:     Yes.   I'm trying to pin




                                                                  000983
                                                                     110



1    down the time period she is testifying to.        She wasn't

2    there during the time of the fire and she didn't work

3    there --

4                    THE COURT:     I asked if you had an

5    objection.

6                    MR. PLUMMER:     The objection is relevance

7    of her answer -- the question and her answer because

8    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

12   were aware that the back door key had been lost; is

13   that right?

14       A.     It was lost.

15       Q.     By the key being lost, you guys didn't have

16   access to open or close that door; is that correct?

17       A.     Before I left.

18                   MR. PLUMMER:     Objection, Judge.     Again,

19   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

21   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

25   speaking objections.      Do you understand me?




                                                            000984
                                                                        111



1                       MR. PLUMMER:     Yes, sir.

2                       THE COURT:     All right.    I may have

3    missed it.    Have you gotten her to talk about all of

4    the time period when she was working there?

5                       MR. SPARKS:     No, I haven't.     But I can

6    develop it, Judge.

7                       THE COURT:     Let's get that taken care

8    of.

9                       MR. SPARKS:     Yes.

10                      (Open court.)

11         Q.   (By Mr. Sparks)        Ms. Irondi, were you

12   employed -- did you start your employment in June of

13   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

18   of 2008 --

19         A.   Uh-huh.

20         Q.   -- the back door key was lost.           Is that your

21   testimony?

22         A.   That's what I said.

23         Q.   Okay.     And had you made requests of anyone

24   to have that key replaced before you left?

25         A.   Before I left, I know it was reported to one




                                                                  000985
                                                               112



1    of the supervisors that the key is not available.

2        Q.   Okay.     Do you know how long it had been

3    between the key being lost while you were there,

4    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

11   inoperable; is that correct?

12       A.   You can't open it without a key.

13       Q.   Tell us about the garage door.     Was that

14   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

18   it for you to pass through.     If not, it can

19   (indicating), it can fall on you, you know.

20       Q.   So the three entrance and exit doors of the

21   property was the front door --

22       A.   Yes.     That was the only door we were using

23   when I was there.

24       Q.   And that was up until the period of time of

25   February 2008.




                                                           000986
                                                                     113



1           A.   Yeah, when I left.

2           Q.   Because the back door key had been lost,

3    correct?

4           A.   Yeah.

5           Q.   And the garage door, you couldn't go out of

6    it without holding it up because it would fall on

7    you?

8           A.   Yes.

9           Q.   So if there was a situation of an emergency,

10   where you or any other individual caregiver had to

11   move Jenny Wagner, Tanya James, Esperanza Arzola or

12   Elisha Campbell out of the property, you certainly

13   wouldn't have gone out the garage door.          Is that what

14   you're saying?

15          A.   No.     We would use the front door because we

16   can't use the garage door.          It's not safe to use the

17   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

21   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
                                                                     114



1                        MR. TERRY:   I'm sorry, Your Honor.

2                        THE COURT:   Mr. Thweatt?

3                        Mr. Terry?

4                             CROSS-EXAMINATION

5    BY MR. TERRY:

6        Q.      Ma'am, did you receive any safety training

7    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

12   Four J's?

13       A.      I was not given the training, but there was

14   a paper they give for you to sign.           But the training

15   was not given.

16       Q.      Okay.     So I guess what you are saying is the

17   people at Four J's presented you with a paper to

18   sign --

19       A.      Yes.

20       Q.      -- to indicate that you had gone through

21   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
                                                                    115



1    overwhelmed?

2                     MR. PLUMMER:     Judge, objection, leading.

3                     THE COURT:     Sustained.

4        Q.   (By Mr. Terry)       Ma'am, did you ever feel

5    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

9    wheelchair.    And what's the -- Tanya, you have to

10   assist Tanya too.     So we feel that we need two staffs

11   to do the work.

12       Q.   Did you ever request to have additional

13   staff?

14       A.   Well, I didn't.

15       Q.   Why is that?

16       A.   I don't actually have -- I see that's the

17   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

21   Arzola, was she capable of hurting people?

22       A.   I think so, because I know she fought with

23   one of the, one of the staff sometime, pulled her

24   hair.

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




                                                           000989
                                                                       116



1           A.      No.

2           Q.      You did not?

3           A.      Not really.

4                           MR. TERRY:   Pass the witness, Your

5    Honor.

6                           THE COURT:   Mr. Plummer?

7                                 CROSS-EXAMINATION

8    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

12   2008, did you go back to the Beretta Court house?

13          A.      No.     No.   After I left, I never went back

14   there.

15          Q.      Okay.     And is it fair to say that you left

16   on sour terms?

17          A.      I don't understand.

18          Q.      Well, could you get another job at

19   another --

20          A.      I already do two jobs, so I already have a

21   job.        I work at Four J's and another place.      So I

22   left Four J's and concentrated on the other.            Because

23   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
                                                                   117



1           A.   Yeah.     Always caregiver.

2           Q.   Now when did you lose your key, your back

3    door key?

4           A.   I don't know exactly.     I cannot tell you the

5    dates or the month.        I can't remember.

6           Q.   Okay.     Was it right after it was given to

7    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

11   month, the date.        But I knew it was lost, it was

12   misplaced.

13          Q.   Okay.     And you told somebody you misplaced

14   your back door key and asked for another one; is that

15   right?

16          A.   Yeah.     I'm not the only staff.   The other

17   staffs did too, that we don't have the back door key.

18          Q.   So when you were given your front door and

19   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

24   were given a front door and a back door key.

25          A.   No, no.




                                                              000991
                                                                   118



1           Q.   Were you -- was there just one front door

2    key?

3           A.   One back door key.     But every staff had the

4    front door key.

5           Q.   Now, is it -- did Ms. Ogbonna ever give you

6    keys to the house?

7           A.   Who?

8           Q.   Inya Ogbonna.

9           A.   That's the front door key, that was what he

10   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,

15   had pulled somebody's hair at one point in time,

16   right?

17          A.   (Indicating.)

18          Q.   And you had training, some training to teach

19   you how to deal with people that had aggression like

20   Arzola; is that right?

21          A.   No.

22          Q.   You never talked to the psychologist,

23   Dr. Lockwood?

24          A.   Okay.     Once in a while.

25          Q.   You remember that now?




                                                           000992
                                                                  119



1        A.   The psychologist.

2        Q.   The psychologist.

3        A.   The psychologist that come for the staff

4    meeting, like a staff meeting.

5        Q.   Okay.     So he did teach you --

6        A.   Sometimes he come and he discuss maybe one

7    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

11   wards in the house, is that correct, one of the

12   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

19   finishes his question.

20                    THE WITNESS:     Okay.

21                    THE COURT:     And we will wait until you

22   finish your answer.

23       Q.   (By Mr. Plummer)        Long and short,

24   Dr. Lockwood's responsibility was to help the staff

25   understand how to deal with the patient's




                                                           000993
                                                                  120



1    psychological problems; is that right?

2        A.    Yes.

3        Q.    And he taught you all, including you, how to

4    deal with Arzola; is that right?

5        A.    Not specifically her, not just Arzola.

6                      This is Esperanza, right, is that who we

7    are talking about?

8        Q.    Okay.    Yes, Esperanza.

9        A.    Okay.    You are saying Arzola.   Not

10   specifically on her.      It might be on any client from

11   any house.

12       Q.    All right.     But, clearly, she was included

13   in that group; is that correct?

14       A.    Yeah, because she is included in the clients

15   that I could see.

16       Q.    Okay.    You did attend a fire drill; is that

17   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

22   house.

23       A.    No.

24       Q.    All right.     Let me show you what's been

25   marked as Exhibit 15.




                                                            000994
                                                                   121



1                     MR. THWEATT:   Defendants' Exhibit 15?

2                     MR. PLUMMER:   Yes, Defendants'

3    Exhibit 15.

4                     MR. THWEATT:   Thank you.

5          Q.   (By Mr. Plummer)     Do you see your signature

6    on that document?

7          A.   Like I say, we were given this to sign.      But

8    we were not physically -- nobody came to do it for

9    us.

10         Q.   Well, let me -- let's understand a couple

11   things.     One, Jenny Wagner had a Personal Emergency

12   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

17   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

20   to do in the event of an emergency for Jenny Wagner,

21   right?     You don't remember that?

22         A.   I don't remember.

23         Q.   Well, well, how about Tanya James.      She had

24   a Personal Emergency Plan in her binder, right?

25         A.   I think each one of them should have that.




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1           Q.     Okay.     And it told you what to do in the

2    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

6    of an emergency.

7           A.     I'm checking this handwriting, if it is

8    mine.       That's not my handwriting.

9           Q.     That is your signature on that fire drill

10   report, right?

11          A.     It doesn't look like my signature.

12          Q.     And it's -- that's not your signature at

13   all?

14          A.     Huh-uh.

15          Q.     Okay.     So you never had attended or had any

16   fire drills, right?

17          A.     That's what I said.     But I was given a paper

18   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

23   I sign.

24          Q.     Well, you remember you gave deposition

25   testimony --




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1        A.   I did what?

2        Q.   You remember you gave sworn deposition

3    testimony in this case, right?

4        A.   I did.     But I saw that paper.   Maybe it's

5    because it's on this screen.

6        Q.   And you remember you were asked about that

7    item, that particular exhibit there and your

8    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

17   paper to sign but I did not get the training.      I said

18   that.

19       Q.   Well, there are two issues that we are

20   dealing with.     One, is that your signature or is that

21   not your signature?

22       A.   Can I see the copy, because this screen --

23       Q.   The copy is in evidence.     This is a blowup

24   of the original.

25       A.   Can I see the paper?     Because I'm not clear




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1    with this.

2        Q.    Let me show you what's been marked as

3    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

9    I sign?

10       Q.    Sure, but --

11       A.    This is not my handwriting.

12       Q.    You remember you were asked about that

13   document in your deposition --

14       A.    This is what you show me.

15                     THE COURT:     Ma'am, you need to wait till

16   he finishes his question.         You need to wait till I

17   finish talking before you respond.         I understand you

18   are nervous, but it makes life very difficult for our

19   court reporter when you talk over each other.

20                     THE WITNESS:     Okay.

21       Q.    (By Mr. Plummer)        Remember when you gave

22   your deposition in February of 2011, and on page 51

23   down here, you were asked --

24                     THE COURT:     Step down Mr. Plummer.

25                     MR. PLUMMER:     I'm sorry, Your Honor.




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1        Q.   (By Mr. Plummer)     Let me direct your

2    attention to page 51.     The question down here is

3    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

9    attended any in-services where they talked about fire

10   safety and how to evacuate clients and consumers of

11   the home, never visited with the fire marshal and had

12   any instructions from him.     Right?

13       A.   Never fire marshal.

14       Q.   Never had any instructions from the fire

15   marshal or from staff or other folks about how to

16   evacuate the clients.     Is that right?     That what you

17   are telling this jury?

18       A.   I never had a training.        That's what I am

19   telling the jury.

20       Q.   Never had a training but --

21       A.   I was given the paper to sign that the

22   training was given.

23       Q.   Okay.    Never had a training session, never

24   had an in-service session where you were trained,

25   right?   You, in a group, were trained, right?




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1        A.   The in-service -- Lockwood?           I don't

2    remember the name of the psychologist that come to

3    give us lecture once a month -- I do attend that

4    in-service sometimes.

5        Q.   Okay.     So you only attended Lockwood's

6    in-service sessions, never attended any in-service

7    sessions where they talked about safety issues and

8    evacuations, anything like that, right?

9        A.   I don't recall that.

10       Q.   And you never read the clients' and

11   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

18   questions.

19                    THE COURT:     Mr. Thweatt.     Excuse me.

20   Mr. Terry.

21                    MR. TERRY:     That's fine.     Briefly,

22   Judge.

23                        RECROSS-EXAMINATION

24   BY MR. TERRY:

25       Q.   Ma'am, how much did you make per hour while




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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

6    Honor.

7                       THE COURT:     Mr. Plummer?

8                       MR. PLUMMER:     Yes, Your Honor, just a

9    second.

10                      Nothing further, Your Honor.

11                      THE COURT:     All right.     Thank you,

12   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,

17   please.

18                      MR. THWEATT:     Your Honor, may we

19   approach very briefly?

20                      THE COURT:     Yes.

21                      (Bench discussion.)

22                      MR. TERRY:     We have a witness that --

23   Rick Overholt, that we are going to read the depo in.

24   We think we can get it in before lunch.             We just have

25   one issue on what you sustained by way of the




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1    objection on subsequent remedial measures.          Our notes

2    weren't clear last night.       So if we can just clear

3    that up briefly, we can read it.

4                    MR. THWEATT:     Starting on page 43.

5                    THE COURT:     43, lines 10 through 16, I

6    sustained the objection.

7                    Now, how are we going to do the

8    designations on page 28 and on page 31, which I am

9    allowing in only to show notice?       Have y'all discussed

10   that with opposing counsel on how we are going to

11   handle those?

12                   MR. THWEATT:     The objections you

13   sustained in part and overruled in part?

14                   THE COURT:     Yes.

15                   MR. THWEATT:     We have not discussed

16   that.

17                   THE COURT:     All right.     Do the other

18   parts and then let me know when you are about to do

19   page 28 and page 31 so that I can give the jury their

20   instruction prior to that testimony.          But do all the

21   rest of the deposition and leave that for the end, and

22   let me know when you are at that point that I should

23   give the instruction.

24                   MR. THWEATT:     All right.     We will do all

25   of that, and then we will stop and tell you.          Okay.




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1                     THE COURT:     Are y'all going to have any

2    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

8    Overholt by deposition.

9                     THE COURT:     All right.   Are y'all

10   reading this?

11                    MR. THWEATT:     We are.

12                    THE COURT:     Ladies and gentlemen, the

13   next witness is being called by deposition.         A

14   deposition is a proceeding that occurs before trial

15   where lawyers have an opportunity to ask a witness

16   questions and cross-examine the same witness.            The

17   witness is given the same oath that witnesses take

18   here in court.     They have the same responsibilities

19   for telling the truth, and they are under the same

20   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

23   answers Mr. Overholt gave in the deposition.

24                    You may proceed.

25




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1                           RICK OVERHOLT,

2    called by deposition, having been duly sworn, testified

3    as follows:

4             PLAINTIFF'S DIRECT EXAMINATION OFFER

5    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

9    Ms. Smith, in her capacity as the lawyer for the

10   defense in this case, ask you to prepare a written

11   opinion of your -- a written report of your opinions

12   in this case?

13       A.   No.

14       Q.   Have you ever testified as an expert witness

15   in a civil litigation matter?

16       A.   No, I haven't.

17       Q.   Have you ever testified as an expert witness

18   in a criminal litigation matter?

19       A.   No.

20       Q.   Okay.     Today then would be the first time

21   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,

25   security alarms.




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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

8    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,

14   Texas.

15       Q.   And just briefly tell us what OMNI is in the

16   business of.

17       A.   We install and monitor and service fire

18   alarms, security systems, cameras, access controls.

19       Q.   Okay.   And as I understand it, OMNI Fire &

20   Security Systems installed a fire alarm system in the

21   residence located at 16355 Beretta Court in Houston,

22   Texas.

23       A.   Correct.

24       Q.   Did you have any personal involvement in the

25   installation of that system?




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1        A.   In fact, I did the certification the day

2    that the fire marshal inspected it when it was put

3    into commission.

4        Q.   And according to Deposition Exhibit No. 2,

5    the installation certificate would have been

6    completed on -- looks like November the 19th, 2001;

7    is that right?

8        A.   Yes.

9        Q.   Just generally, for the ladies and gentlemen

10   of the jury, tell us what you put into that home.

11       A.   Basically a smoke detector in every room;

12   pull station at the front and back door; two

13   horn/strobes, one near the front door, one near the

14   back door.   And I believe -- I would have to refer

15   back to the drawing.    I believe there's also two or

16   three strobes -- if you don't mind me looking while I

17   answer that question.

18       Q.   Certainly.

19       A.   Strobe lights -- yes, two strobe lights in

20   the bathrooms; heat detector in the kitchen; heat

21   detector in the garage; a bell on the outside of the

22   house.

23       Q.   Do you know who asked you to install this

24   fire alarm system?

25       A.   The client dealt directly with my employee,




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1    David Knapp.      So he's the one who originally arranged

2    installation with the Four J's owners.

3        Q.    Okay.    In this deposition room here today is

4    a lady named Anthonia Uduma.      Have you ever seen her

5    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

9    was going out to do an inspection on one of the

10   homes.

11       Q.    What did you understand her relationship to

12   be with the Beretta Court home?

13       A.    Well, I understand her to be the principal

14   owner of Four J's.

15       Q.    Okay.    Did she ever tell you that she was,

16   in fact, the owner of the actual house?

17       A.    I assumed about that.     But she never told me

18   those words, no.

19       Q.    Okay.    What is it about your on interaction

20   with her that led you to that assumption?

21       A.    Well, typically we do a lot of business with

22   that vertical market, with residential care homes.

23   And typically the owner of the company, they

24   typically own the properties as well.      They buy it

25   and set it up.




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1        Q.   Is OMNI Fire & Security, are they in the

2    business of installing overhead sprinkler systems?

3        A.   No.

4        Q.   Are you familiar with companies here in the

5    Houston area who do such things?

6        A.   We work closely with those companies.

7        Q.   And that's because those fire sprinkler

8    systems have to work in conjunction with the fire

9    alarm system; is that right?

10       A.   We -- we monitor those systems.   The water

11   flow and the valves and those sort of things are

12   monitored by our equipment.

13       Q.   Okay.   But you would also agree with me that

14   in a situation where you have people who might be in

15   that facility who are completely helpless in the

16   event of a fire that an overhead sprinkler system can

17   be very effective in addressing the outbreak of a

18   fire?

19       A.   Yeah, a sprinkler can be effective.     Yes.

20       Q.   Just like a smoke alarm or a pull alarm can

21   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

25   background?




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1        A.   Associate's degree.     I'm licensed as a fire

2    technician, which was training.     I have a NICET

3    Level II in fire alarms, which is a national

4    organization that certifies us for what we do.

5        Q.   Okay.    Have you ever published any articles,

6    journals, or treatises on fire prevention systems?

7        A.   No.

8        Q.   Okay.    Do you hold any certificates or

9    training beyond your associate's degree related to

10   fire alarm systems?

11       A.   A NICET Level II -- I'm NICET Level II

12   certified for fire alarms.

13       Q.   And what does that mean?

14       A.   Well, NICET is the national governing agency

15   that governs fire alarm technicians and installers

16   and even designers and planners.

17                    So, a Level IV NICET person would be the

18   guy that stamps the plan, like Tony Mitchell, this

19   gentleman here.     And a Level I would be a -- you know,

20   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

23   it stands for?

24       A.   I think it's National Institute of

25   Engineering Certification Technologies.     I'm not




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1    exactly sure honestly.

2        Q.   Are you aware that you've been designated by

3    the defense in this case to act as an expert?

4        A.   Yes.

5        Q.   Do you know what you've been asked, if --

6    well, let me ask you this:     Have you been asked to

7    render any expert opinions by the defense in this

8    case?

9        A.   Just regarding what we did, just -- just

10   relating to the fire alarm installation is the only

11   thing I've been asked about.

12       Q.   Okay.   So you've not been asked to provide

13   any opinions on whether the system you installed was

14   sufficient or whether it was insufficient or anything

15   like that; is that right?

16       A.   Yeah.   I thought we would do that here.       No,

17   we haven't discussed that.

18       Q.   Okay.   When you installed the system at the

19   Beretta Court residence -- I say you.     OMNI.

20       A.   Yeah.

21       Q.   Was OMNI aware of the types of clients who

22   would be residing in that home?

23       A.   No.

24       Q.   Okay.   That's not part of the job that you

25   do, is to come in and evaluate whether this system




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1    that you're installing is appropriate or not for the

2    people who are going to be living there?

3          A.     Well, it's -- we treat it as a personal care

4    home.      And, you know, that's a general

5    classification.         And it's actually the city that

6    gives us the classification of the building.

7          Q.     Okay.

8          A.     And so we design the system to meet what the

9    city said the purpose of the building was.

10         Q.     I see.     Okay.   But you don't sit down with

11   the customer and say, look, our understanding is that

12   this home is going to be used for a personal care

13   facility and because of that, have you considered A,

14   B, and C options?         Does anything like that happen in

15   your conversations with the customer?

16         A.     Typically in this case, no.      It's a personal

17   care home.      And there's a standard that has to be met

18   for personal care homes.          We know what that standard

19   is.     And so we design it around that.

20         Q.     And it's a minimum standard, right?      You

21   have to meet that standard and then you get the

22   blessing from the city, correct?

23         A.     Correct.

24         Q.     Okay.    There is certainly nothing preventing

25   a customer who wants to employ your company from




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1    exceeding the minimum standards set by the city,

2    right?

3        A.   Certainly not.

4        Q.   Okay.    You've reviewed the report of the

5    former Houston Fire Chief, Eddie Corral, in this

6    case?

7        A.   Yes.

8        Q.   Was there anything had in that report that

9    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

15   outside my scope of work, so ...

16       Q.   Okay.

17       A.   I don't feel like that my opinion -- my

18   opinion would be personal and not professional on

19   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.




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1    What was that associate's degree in?

2        A.   Programming, computer programming.

3        Q.   Okay.    All right.   Have you been to the

4    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

9    employees at OMNI have been out to the site of the

10   fire since -- since the fire took place?

11       A.   Not to my knowledge.

12       Q.   Let me show you some pictures that were

13   taken by the Houston Fire Department of the residence

14   after the fire.

15       A.   Okay.

16       Q.   And I'm going to refer you to page 70 of --

17   it's called the Houston Fire Department Incident

18   Report number.    And it's got the report number listed

19   there.

20                    There's two color photographs that

21   appear on page 70 of that packet of photos.     And I'd

22   like to direct your attention to the top photograph

23   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.




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1        Q.      Okay.   And how -- just generally how does it

2    operate?

3        A.      You pull down the handle and it sets off all

4    the sounders and flashing lights to it and advises

5    the occupants to evacuate.

6        Q.      Okay.   Now there's smoke detectors that were

7    installed in the Beretta Court residence.      If those

8    smoke detectors are activated, does the same thing

9    happen automatically --

10       A.      Yes.

11       Q.      -- as the pull alarm might be pulled

12   manually?

13       A.      Yes.

14       Q.      Okay.   Can you tell us how quickly -- if

15   smoke detectors detect smoke in the Beretta Court

16   residence, how quickly would they have activated the

17   strobes and the alarms?

18       A.      Typically 30 seconds or less.

19       Q.      And these alarms are extremely loud, aren't

20   they?

21       A.      Very loud.

22       Q.      Can you give us an idea in terms of

23   decibels?

24       A.      85.

25       Q.      And without knowing anything about decibels,




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1    what --

2        A.     It hurts your ears.

3        Q.     Okay.

4        A.     It makes you want to get out of the building

5    when you hear that.

6        Q.     If you were sleeping, you would certainly

7    hear it?

8        A.     Absolutely.

9        Q.     Okay.    Now, there's -- it's a little bit

10   better picture.       I'm turning to page 69.    There's an

11   exit sign that you can see depicted on the door of --

12   or one of the doors of the residence.       Is that sign

13   something that would have been installed by OMNI?

14       A.     No.     We just do the electronics.    We don't

15   do the signage.

16       Q.     Okay.    There's another sign depicted on

17   page 69.

18       A.     That would be our sign.

19       Q.     Okay.    And that sign says what?     Can you

20   just read that for the record?

21       A.     Yes.    "Local alarm only.   Call the fire

22   department."

23       Q.     Okay.    Do you know how much it cost to

24   install the fire alarm system there at the

25   16355 Beretta Court residence?




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1        A.      Approximately 2,000.

2        Q.      And do you do the other fire prevention

3    systems for Four J's other than the Beretta Court

4    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

10   before I left, but I didn't.

11       Q.      Let me hand you Exhibit No. 3.

12                      Mr. Overholt, can you identify this

13   document, please?

14       A.      Yes.     It's an inspection form that was

15   filled out during an inspection by one of my

16   technicians.

17       Q.      And the tech appears to be Kristopher

18   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,

23   on October the 4th, 2005?

24       A.      He was 21.

25       Q.      All right.     Was he working for you-all full




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1    time at that point?

2        A.     Part time.   He was in college.

3        Q.     Okay.   And so when he goes out to inspect

4    the system that was installed there back in 2001, we

5    can see a number of things that he has to check here.

6    How long does it take for him to complete this kind

7    of inspection?

8        A.     Typically it's about an hour.

9        Q.     And what does OMNI charge for that kind of

10   inspection?

11       A.     At the time this was done, it was 125.     It's

12   more than that now.

13       Q.     Okay.   Is all the handwriting that on this

14   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

19   presume?

20       A.     Yeah, somewhat and my technicians.   He went

21   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

25   duties at OMNI, have you ever inspected a home that




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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

6    that with that type of lock system, do you note that

7    on the inspection report as Kristopher did here?

8        A.     Typically, no.    Actually, inspecting the

9    locks isn't part of our function.      So the fact that

10   he did that was just something that he just wanted to

11   note outside of our regular scope of our inspection.

12       Q.     Have you talked to him about why he put this

13   note on this particular inspection report?

14       A.     Yes.

15       Q.     Now, once this report is prepared and

16   completed and signed by the technician, who inspects

17   the property?      What is done with it?

18       A.     A copy is provided to the owner along with

19   the invoice.

20       Q.     And at the bottom of this particular

21   inspection report, it says:      Owner/manager not

22   present.    Do you see that?

23       A.     Yes.

24       Q.     And it's got a little KO circled.    Is that

25   Kristopher's initials?




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1        A.     Yes, it is.

2        Q.     And then he's -- he's also written down

3    here:    No one available to sign.     Do you see that?

4        A.     Yes.

5        Q.     There's -- there is a signature on it.       Is

6    that his signature?

7        A.     Yes, that's his.    And then underneath it

8    would be where the owner's would go.       So if no one's

9    available, we just write that note that we did the

10   inspection, but there was nobody there at the time.

11       Q.     If no one was available to sign, do you know

12   how it is that Kristopher would have been allowed

13   access to the -- this ticket -- this inspection

14   report, are you able to discern whether or not the

15   fact that the Zone I was disconnected, is that -- was

16   that what would have prompted OMNI to come out to the

17   house?

18       A.     No.    We were there for an -- a semiannual

19   inspection, I believe it says.       So we came out just

20   to -- this form would indicate we just were there to

21   do the inspection.

22       Q.     And then just -- you have -- or it looks

23   like Kristopher happened to show up on one of the

24   days when one of the zones was disabled?

25       A.     Correct.




                                                          001019
                                                                 146



1          Q.   Does that mean it was -- the word disabled

2    can mean a couple of things.        It means somebody

3    intentionally disabled it or it means it's just not

4    functioning right.       Do you know what the case would

5    have been on this?

6          A.   Well, the switch that we're talking about

7    would have been manually moved to disable to stop the

8    beeping.

9          Q.   There's a door in this room here in this

10   deposition.    And if I open that door, it will just

11   remain open.       There's no self-closing mechanism on

12   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

16   OMNI had installed, if I'm understanding you right,

17   is that there were self-closing mechanisms attached

18   to each door in the house?

19         A.   We didn't install it.      Again, that was

20   another observation that wasn't part of our scope of

21   our inspection.

22         Q.   Okay.     They were either -- I'm sorry.

23                      They were there either prior to or

24   sometime before October the 4th, 2005?

25         A.   Well, typically the fire marshal requires




                                                             001020
                                                                  147



1    those to be installed in personal care homes.       That's

2    part of the -- one of the things that's done by other

3    trades.

4           Q.   Okay.   And because you work with the fire

5    marshal's office, you know about that requirement?

6           A.   Yeah.   We've had jobs held up because they

7    weren't there.      So we couldn't get our system cleared

8    yet.

9           Q.   And by blocked open, that would seem to

10   indicate that somebody had put like a brick in front

11   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

16   those doors are blocked open during a fire, then the

17   self-closing mechanism would be frustrated, right?

18          A.   Yes.

19          Q.   Meaning that smoke would spread more rapidly

20   through the house, right?

21          A.   Correct.

22          Q.   And meaning that the residents in the house

23   could be more quickly consumed by smoke, true?

24          A.   That would be the reason for the closers,

25   yes.




                                                           001021
                                                               148



1        Q.   And so the reason why an OMNI inspector

2    would note something like that on his inspection

3    report is to basically communicate to the owner of

4    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

7    him, right?

8        A.   Yes.

9        Q.   Okay.   Did OMNI's contract with Beretta --

10   with -- I'm sorry -- with Four J's, did that contract

11   ever expire or ever -- not renewed?

12       A.   No.

13       Q.   And there was -- the contract calls for

14   semiannual inspections; is that correct?

15       A.   Yes.

16       Q.   And if you'll look at the document that

17   you've brought here, can you tell us what the last

18   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

21   are -- one's dated January of 2003.    We see one of --

22   in December 2003.    And we see one October 2005.   We

23   see one dated October 2004.    There's one dated

24   October 2006.    And then in the one between October

25   the -- or -- I'm sorry.    November 2006.




                                                         001022
                                                                  149



1        A.    Yes.

2        Q.    I misspoke there.

3                      There's one dated November 2006.     And

4    then the last one, you said, is dated November 2007;

5    is that right?

6        A.    Yes.

7        Q.    Can you tell us why there wouldn't have been

8    another inspection sometime in 2007 or was there?

9        A.    I could pull our computer records and see if

10   there's a document that didn't make it into the

11   file --

12       Q.    Okay.    Are you aware of any inspection that

13   took place in 2008?

14       A.    No.

15       Q.    Did you look?

16       A.    I did look.     I saw that there was one

17   November -- the year before.      So it was probably

18   coming up in November.      And then the fire was in what

19   month?

20       Q.    September.

21       A.    Then that's why.     It burned before the 2008

22   inspection happened.

23       Q.    I see.

24                     Now, if we look at the inspection report

25   that your son did for this residence, that one that




                                                            001023
                                                                     150



1    I'm talking about was dated October 4th, 2005.           You

2    see that?

3        A.      Yes.

4        Q.      And if we look at the photographs of the

5    fire taken shortly after the fire in September of

6    2008, you can see on page 70 there that it doesn't

7    appear that the situation changed regarding the rear

8    exit door and the lack of key access.        Would you

9    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

13   depicted in the photograph, does that deadbolt lock

14   there have the kind of lock where you can turn it

15   manually and unlock it?

16       A.      Doesn't appear to have, no.     It looks like a

17   keyed lock.

18       Q.      Let me show you page 76 of the Houston Fire

19   Department photos.        It's a closer-up photo.     Again,

20   that photograph would indicate that you have to have

21   a key to unlock the deadbolt, right?

22       A.      Yes.

23       Q.      Okay.    And we can see there's significant

24   damage done to the doorknob on that door.           That kind

25   of damage, if it existed, certainly should have been




                                                              001024
                                                                  151



1    reflected on this inspection report, right?

2          A.   Yes.

3          Q.   The type of fire alarm system that was in

4    this house, is it the kind of system that

5    automatically notifies the Houston Fire Department?

6          A.   No.     That's a local alarm there.   It only

7    sounds local sounders.

8          Q.   So if the fire department is going to be

9    notified, it's going to have to be by somebody

10   calling them on the phone from the Beretta Court

11   residence?

12         A.   Yes.

13         Q.   As opposed to, say, like a fire alarm system

14   installed in this building, would that be something

15   that's connected directly to the fire department or

16   do you know?

17         A.   Well, it depends on when it was installed.

18   But in 2005, 2006 more fire departments started

19   requiring monitoring.       Previously they didn't require

20   it in all buildings.

21         Q.   Okay.    Is that the kind of thing that a

22   customer or consumer can order, though, if they want

23   to?

24         A.   Yes.

25         Q.   How much does it cost?




                                                            001025
                                                             152



1        A.   The monthly fee for that is $32 a month.

2        Q.   So if the owners of the 16355 Beretta Court

3    residence had wanted to do so before this fire took

4    place, could they have set up a fire alarm system

5    that would have automatically notified the fire

6    department in the event of a fire?

7        A.   Yes.

8        Q.   And they could have done that for $32 a

9    month.

10       A.   Plus some installation and phone line costs.

11   That -- my fees would be 32, and then there would be

12   fees for the phone lines.

13       Q.   About how much would that be?

14       A.   Typically about $80 for two dedicated phone

15   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

25   department in the event of a fire.




                                                        001026
                                                                153



1        A.     It would notify the monitoring center, who

2    would then call the fire department, yes.

3        Q.     Thereby increasing, one would expect, the

4    response time of the fire department, right?

5        A.     Yes.

6        Q.     I mean, that's the purpose of it, to get

7    them there as soon as they can, right?

8        A.     Correct.   Yes.

9        Q.     Okay.   Is that the kind of service that OMNI

10   sells to its customer?

11       A.     Yes, we do that service.

12       Q.     Is that the kind of service, from your view

13   of the paperwork, which would have been offered to

14   the owner of the Four J's -- I'm sorry -- of the

15   Beretta Court residence?

16       A.     It would have been available.   I can't tell

17   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

20   you've sold to other care home facilities here in

21   Houston?

22       A.     Yes.

23       Q.     Okay.   Are you still providing fire

24   inspection services for Four J's Community Living

25   Center?




                                                        001027
                                                               154



1        A.   At other locations?

2        Q.   Yes.

3        A.   Yes.

4        Q.   And by adding monitoring services, do you

5    mean the automatic notification of the fire

6    department?

7        A.   Yes.

8                     And quite frankly that could have been

9    required by the jurisdiction, because they're starting

10   to do that now on some of the older properties.      So

11   they may have -- I'm not sure if it was because they

12   wanted it or -- because I wasn't the one who spoke

13   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

17   fire or if it was in response to some code change,

18   right?

19       A.   Correct.

20       Q.   Okay.    Nonetheless, it's something that

21   could have been done at the Beretta Court residence

22   prior to September the 4th, 2008, true?

23       A.   Yes.

24       Q.   But you know from the paperwork that you've

25   seen related to this property, it's something that




                                                          001028
                                                                155



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

4    companies in the business of providing personal care

5    services such as Four J's does?

6        A.      Yes.

7        Q.      And if something like that would have taken

8    place -- a consult, I'll call it that.      Is that what

9    you call it?

10       A.      Yes.

11       Q.      Okay.   If a consult would have taken place,

12   is that the kind of thing that would have been

13   reflected in OMNI's paperwork?

14       A.      Not necessarily.

15       Q.      Mr. Knapp at OMNI is the one who could speak

16   to whether or not that occurred?

17       A.      Yes.

18       Q.      And I think I saw his name on one of these

19   inspection reports, the one dated December 2003.      Is

20   that him?

21       A.      That is him.

22       Q.      Okay.   And so if Four J's had wanted to do

23   so, they could call Mr. Knapp and they could say,

24   since we first installed this system in 2001, we're

25   now caring for a client who is unable to walk, who is




                                                         001029
                                                                  156



1    unable to speak, who is unable to feed themself, who

2    is blind and otherwise completely helpless in the

3    event of a fire and because of that, we'd like for

4    you guys to come out and evaluate whether the fire

5    prevention or fire detection in our home here is

6    adequate.     That's something that Four J's could have

7    done, right?

8        A.      Yes.

9        Q.      Looking at the inspection of the equipment,

10   the last one dated November 2007, does it appear to

11   you that there were any changes made from the

12   original installation date in 2001 until the last

13   inspection report we see here, November 2007?

14       A.      Actually for 2001 -- here, I've got the

15   document I need right here.

16                       No, it looks like it's the same amount

17   of equipment that -- as from the original install.

18       Q.      If you look at page 68 of the Houston Fire

19   Department photographs, you can see two pictures of a

20   fire extinguisher there in the kitchen of the

21   residence.

22       A.      Yes.

23       Q.      In is that the kind of fire extinguisher

24   that would be appropriate for this residence?

25       A.      Yeah.    I'm not a licensed fire extinguisher




                                                           001030
                                                                             157



1    guy.        So, honestly, I can't answer it.

2           Q.      Okay.

3           A.      It looks like it.

4           Q.      And, of course, you'd expect that the people

5    who worked there in the facility would know how to

6    operate a fire extinguisher in the event of a fire as

7    well, right?

8           A.      I would think so.

9           Q.      Doesn't make much sense to have a fire

10   extinguisher in a house like that if you don't know

11   how to use it when a fire breaks out, does it?

12          A.      No.

13                          MR. THWEATT:     No further questions, Your

14   Honor.

15                          THE COURT:     Mr. Sparks.   Do you need

16   that instruction now?

17                          MR. THWEATT:     Yes.   Thank you.

18                          THE COURT:     Ladies and gentlemen, you

19   are about to hear a little additional testimony.                  The

20   testimony you are to hear you are to consider only for

21   purposes of whatever notice you might consider it gave

22   to the Defendants.           You are not to consider it to be

23   an actual truthful statement, just as a statement that

24   the Defendants may or may not have received notice.

25                          You may proceed.




                                                                  001031
                                                                 158



1                        MR. THWEATT:   Thank you, Your Honor.

2        Q.      And what is he doing there?

3        A.      He's actually a fire probation engineer.

4    And he is completing his Ph.D. in that field.

5        Q.      Is he studying at the University of Texas

6    for that?

7        A.      Yes, he is.

8        Q.      It looks like Kristopher's handwritten some

9    comments.     And I'd like to focus your attention on

10   the portion of those handwritten comments that says:

11   Rear exit door keyed, deadbolt is locked with no key

12   access.     Do you see that there?

13       A.      Yes.

14       Q.      And if we look at the photographs of the

15   Beretta Court residence that were taken by the

16   Houston Fire Department, you can see a rear exit door

17   that's got the doorknob knocked off and then there's

18   a deadbolt keyed lock.        Do you see that?

19       A.      Yes.

20       Q.      Okay.     Do you know why in the course of an

21   inspection performed by OMNI that a rear exit door

22   keyed, deadbolt is locked with no key access would be

23   noted on a form like this?

24       A.      The notes that are on there are items that

25   the installer felt to bring to the client's




                                                            001032
                                                                     159



1    attention.

2        Q.     You mean the inspector?

3        A.     Yes.

4                       MR. THWEATT:    All right.   Now page 31.

5        A.     Yeah.     Typically either one of the Four J's

6    employees would meet us and open the door for us or

7    they would leave a key for us.

8        Q.     I see.     And so I guess in a normal course of

9    business, OMNI would leave the report with Ms. Uduma?

10       A.     Yeah.     If there was somebody at the site, we

11   would leave it there.       We would leave a copy at the

12   control panel for the client and then mail one with

13   the invoice.

14       Q.     Let me ask you about this comment that

15   Kristopher put on here.       It says Zone I was

16   disconnected upon arrival.          And I can't make out what

17   the next word says.       Disabled, is that what that

18   says?

19       A.     Disabled, yes.

20       Q.     What does that mean, Zone I was disconnected

21   upon arrival and disabled?

22       A.     If -- if one of the zones -- the smoke

23   detectors are on a zone.          The pull stations are on a

24   zone.    So if a zone goes into trouble, it starts to

25   beep to get the attention, you know, to let someone




                                                             001033
                                                                   160



1    know there's an issue.       And then to stop the beeping

2    there's a switch on there that -- it leaves a yellow

3    light illuminated.      But it stops the beeping so it

4    doesn't drive you crazy basically.

5                    MR. THWEATT:     No further questions, Your

6    Honor.

7                    THE COURT:     Ladies and gentlemen, this

8    is a good point for us to go ahead and take our lunch

9    break.    It's 11:45.   We will start back up at

10   1:00 p.m.

11                   (Jury excused from the courtroom.)

12                   (Lunch break.)

13                   BAILIFF:     All rise.

14                   (The jury present, proceedings resumed

15                   in open court as follows.)

16                   THE COURT:     Thank you.   Please be

17   seated.

18                   MR. PLUMMER:     Judge, may we approach?

19                   THE COURT:     Yes.

20                   (Bench discussion.)

21                   MR. PLUMMER:     Judge, I have --

22                   THE COURT:     Mr. Plummer, you have had

23   all lunch.    You wait until we come back ten minutes

24   late because we are waiting for a juror to ask to talk

25   to me outside the presence of the jury.        I warned you




                                                             001034
                                                                    161



1    yesterday, let us know beforehand, and not to do this.

2                     What is the issue?

3                     MR. PLUMMER:     This is an old motion in

4    limine.     Sunday the newspaper had a big article on

5    Medicaid fraud, and Monday they had a follow-up

6    article.     In today's paper, they had another article

7    talking about Medicaid fraud, ambulances, healthcare

8    centers and things of that sort.        And I want to just

9    ask the Court to limine out any reference to fraud,

10   Medicaid fraud or things of that sort, which I think

11   would be highly prejudicial.        There has been no

12   allegation of fraud.     I don't anticipate counsel doing

13   that.     But just for the record, since this has been

14   widely publicized in the last three days during this

15   trial, I wanted to alert the Court to that, and

16   counsel of that, so we don't have that kind of

17   mistake.

18                    THE COURT:     I'm going to deny it.   You

19   could have predicted that earlier.        You didn't have to

20   wait.     That's the kind of thing that, news comes up

21   all the time.     Lawyers have their ethical obligations.

22   They know what they need to do.        This is not the kind

23   of thing we are going to handle through oral motions

24   in limine at this stage in trial.

25                    Have a seat.




                                                             001035
                                                                    162



1                     (Open court.)

2                     THE COURT:     Call your next witness.

3                     MR. SPARKS:     Judge, I'm going to call

4    Ms. Amuche Udemezue.

5                     BAILIFF:     If you will stand here, raise

6    your right hand and face the Judge, the Judge will

7    swear you in.

8                     (Witness placed under oath.)

9                     THE WITNESS:     I so swear in this court

10   that the evidence I shall give shall -- the testimony

11   I shall give shall be the truth and nothing but the

12   truth.

13                    THE COURT:     So help you God.

14                    THE WITNESS:     So help me God.

15                    THE COURT:     Have a seat.

16                    You may proceed.

17                         AMUCHE UDEMEZUE,

18   having been placed under oath, testified as follows:

19                        DIRECT EXAMINATION

20   BY MR. SPARKS:

21       Q.   Good afternoon, ma'am.        How are you today?

22       A.   Good.

23       Q.   State your name for the record.

24       A.   My name is Amuche Udemezue.

25                    MR. PLUMMER:     I'm sorry.   I didn't hear




                                                            001036
                                                                 163



1    that --

2        A.    Amuche Udemezue.     Amuche Udemezue.

3        Q.    (By Mr. Sparks)     Ms. Udemezue, you are a

4    former employee of Four J's, are you not?

5        A.    Yes.

6        Q.    And when did you first start working for

7    them; do you recall?

8        A.    Yeah.    I think should be November of -- it

9    was -- November of 2007.

10       Q.    November 2007.

11                     How did you find out about them being a

12   potential employer?

13       A.    A friend told me.     So I went and I applied

14   and got the job.

15       Q.    Prior to working for them, had you worked

16   anywhere else?

17       A.    I kind of did part-time, you know, in a

18   place.    I went a couple of times before I got, like a

19   month plus, before I got Four J's job.

20       Q.    Now, when you got the Four J's job,

21   approximately how long had you been living in

22   Houston; do you recall?

23       A.    Yeah.    I came to -- I stayed one month plus

24   in New Jersey, then I came down to Houston.       So it

25   should be -- I got to America, I came to America




                                                         001037
                                                                    164



1    September 8th or 28th.        Then I, I stayed in New

2    Jersey, October.        October.   Then I got to Houston in

3    the -- November or so.

4        Q.      Okay.   So when you first came to the United

5    States was in September of 2007?

6        A.      Yes, sir.

7        Q.      And you worked briefly for a company in

8    October of 2007.        Then you got hired on by Four J's

9    in approximately November of 2007?

10       A.      Yes.

11       Q.      Now, when you first started employment with

12   Four J's in November 2007, how long had it been from

13   the date of hire that you were taken to the facility

14   where you were assigned; do you recall?

15       A.      I -- when, when, when I started, just

16   immediately they took me to the -- when -- the first

17   day, this -- I worked -- there's this kind of

18   training, training or, you know, you watch on CD, you

19   watch it.     Then they took me to the house where I

20   worked.

21       Q.      Okay.

22       A.      Then they let me know the supervisors.      That

23   was it.

24       Q.      So once you filled out the application and

25   got hired, you watched a CD at the office and then




                                                             001038
                                                              165



1    they took you to the facility?

2        A.   Yes.

3        Q.   And was that facility at Beretta Court?

4        A.   Yes.

5        Q.   Was the address 16355 Beretta Court?

6        A.   Yes.

7        Q.   I'm sorry.   16355 Beretta Court.

8        A.   It was Beretta Court.

9        Q.   Now, when you arrived there, were you

10   trained by anyone?

11       A.   The, the lady that was working there before

12   me trained me, kind of.   Yes, sir.

13       Q.   Okay.   And how much training did she give

14   you before you worked?

15       A.   I think a day, two days.     Then you start

16   working on -- you are on your own, you start working.

17       Q.   Okay.   When you first started working there,

18   do you recall how many clients were at that property?

19       A.   At the initial stage, there were three.

20   Then they let out another person, make it four, for

21   four clients.

22       Q.   Now, when you first hired on with the

23   company and when you were doing the training, were

24   you ever led to believe that that would be a

25   three-person home, or did you have any idea about the




                                                        001039
                                                                        166



1    number of people that would be there?

2        A.      I, I just went there.      Three.     But later the

3    staff, because we are like three working, they now

4    told me that another person is coming to occupy the

5    other room, the other room.

6        Q.      Did they ever tell you about that other

7    person, who she was, what her background may have

8    been, what her temperament was, what her medication

9    level was, anything of that nature?

10       A.      No, sir.

11       Q.      Do you recall the people that were there

12   when you first arrived?

13       A.      Jenny was, Jenny Wagner was there.         Tanya

14   James was there.       Esperanza Arzola was there.

15       Q.      Tell the jury what type of person was Tanya

16   James and what was your relationship with her.

17       A.      I'm a caregiver.      Tanya James, she needed

18   total care.     I give her shower, I do everything, I

19   brush her teeth.       I -- no.    She can feed herself.       I

20   cook for her.     I give her meds.      I wash her

21   clothes --

22       Q.      I'm sorry.     I didn't mean to cut you off.

23   Continue.     I'm sorry.

24       A.      She, she -- whatever she wants and

25   everything.     She can't help herself.         You have to




                                                               001040
                                                                  167



1    prompt her.

2        Q.     Was she ever a problem for you at all?

3        A.     She wasn't.   It's just that she, she fond of

4    hitting herself.     If she alone, she will be beating

5    herself.    You have to separate her hands, that's all.

6    If you don't, she hurt herself most of the time.

7        Q.     What about Ms. Wagner, Jenny Wagner, how

8    was --

9        A.     She needed total care.      You do everything.

10   You feed her, you feed her.     You wash her clothes.

11   You bathe her.     You do virtually everything for

12   Jenny.

13       Q.     And did you have a good relationship with

14   Jenny also?

15       A.     I don't have problems.      I don't know.   She

16   sings for me.    She -- I don't know, I'm very, very

17   close to all of them.

18       Q.     Did that also include Esperanza Arzola?

19       A.     Esperanza is, is -- she, she is something

20   else.    She acts up all the time.      Maybe because of

21   her health condition.     So I'm not close to her.      I

22   distance myself from her.     Whatever she say I should

23   give her, I give her.     That's it.

24       Q.     Now, you were -- was she ever aggressive

25   toward you?




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

2        Q.     Were you afraid of her?

3        A.     I was very scared.

4        Q.     Why?

5        A.     Well, the lady, all those ladies that were

6    there before me, told me if -- I should be very, very

7    careful of Esperanza and that she, she can do and do.

8    Anything she wants in the house, I should give her.

9    And I should be careful because she can beat me up,

10   she can kill me here and nobody -- they told me all

11   that.    So I was scared of her.       And also there was --

12   the, the lady that left before me, the one that

13   had --

14                     MR. PLUMMER:     Objection, hearsay.

15                     THE COURT:     Focus your answer on the

16   question he is asking.

17       Q.     (By Mr. Sparks)       When you first got hired

18   and you were assigned to the Beretta Court property,

19   how were you -- were you given a key to the facility?

20       A.     Nobody gave me any key.

21       Q.     I'm sorry?

22       A.     Nobody gave me any key.

23       Q.     How did you get into the facility when you

24   arrived to work?

25       A.     Usually, when I come to work -- when I




                                                              001042
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1    started, kind of -- the lady that trained me, she

2    would come the same time.     You know, she would come

3    before us.     She was already in the house.   Then, you

4    know, I don't have a car.     I ride with the consumers,

5    the clients to Beretta Court.     So when I come, she is

6    already there.     Two days or so, she gave me training,

7    she was already in the house.     Then I enter the house

8    with my clients.     But then, when she stopped training

9    me, I don't have the key.     The driver, if I'm coming

10   to work, I get the key from -- or they give it to the

11   driver.   They give it to the driver.    When we get

12   back, I ride with them.     They now open the door, all

13   of us will get in.     That's the way I did it.

14       Q.    Let me make sure I understand you.      You

15   indicated that when you first started working there,

16   you didn't have a car, correct?

17       A.    Throughout my period at Four J's, I didn't

18   have a car.    Throughout my period working at Four

19   J's, I didn't have a car.

20       Q.    And you would go over to the headquarters of

21   the company?

22       A.    Get a key.

23       Q.    And catch a van over to --

24       A.    Yeah.    Usually they give it to the driver,

25   or some of the staff, they will call me and tell me




                                                             001043
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1    they left the door open.        If I get a ride, most of

2    the time I go there, I get the key -- I will go to

3    the workshop first, get the key and come to work.

4    When the driver comes to drop the clients, I will

5    give him back the key.        That's the way it was.

6        Q.      Was there ever an occasion where you showed

7    up for work and you were locked out?

8        A.      There was a time.     I can't, I can't recall.

9    But the thing, we have to -- I don't, I don't have

10   the key to the house.        At the initial stage.     I later

11   got the key.        The lady that left, you know, gave me

12   her own copy, the one she made for herself, she gave

13   it to me.

14       Q.      Okay.     So you later did get a key?

15       A.      Yeah.

16       Q.      But it wasn't from the supervisors or the

17   caseworkers?

18       A.      No, no.

19       Q.      And the key that you got, what doors did I

20   open?

21       A.      Just one key.     Front door.

22       Q.      Was there any problems with the garage door?

23       A.      The garage door is broke.       All of us, three

24   of us that worked there all the time, Tuesdays -- I

25   think Tuesdays and Fridays, they bring the trash out




                                                             001044
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1    on the street by the side of the curb.      So what we

2    do, if one -- because the garage door is broke, we

3    bring the trash through the living room.      When you do

4    that, after doing that, you have to kind of freshen

5    the room.     You bring the, the trash through the

6    living room, then through the front door.      That's the

7    way all of us -- because the garage was not -- was

8    broke.

9        Q.      Why didn't you take it out through the back

10   door?

11       A.      I don't have the key.   I got only one -- and

12   also, even if I -- no, you can't take -- you go

13   around, back.     It's not possible.   I mean, like

14   this -- it's not possible.      I don't have the key to

15   the back door.

16       Q.      So you never had a key to the back door?

17       A.      I never had.   I don't even know how the key

18   to the back door looks like.

19       Q.      What -- did anything change in terms of the

20   dynamics of the home and the relationship among the

21   women and yourself when the fourth person came to

22   that facility?

23       A.      How, how -- I don't really get your

24   question.

25       Q.      Do you know the name of the fourth person




                                                           001045
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1    that showed up to the house?

2        A.      Yeah.   Elisha Campbell.

3        Q.      Did -- what kind of person was she?

4        A.      Well, she acts like Esperanza.        Severally,

5    she throw cups at me.        She is aggressive.     She can

6    wake up in spite of the fact that you give her

7    medicine, she can wake up.        You know my momma, she

8    start running all over the house, maybe trying to

9    harm you or something.

10       Q.      So she was also aggressive toward you?

11       A.      Yeah.

12       Q.      Were you afraid of her?

13       A.      I was afraid of her.     I was afraid of

14   Esperanza, both of them.

15       Q.      Did you ever communicate your fears and

16   these aggressive actions that were taken by either

17   one of them to the caseworker or any supervisor for

18   Four J's?

19       A.      We told them.     We told them.   And at times,

20   the paperwork we do, we write it down.         Most of the

21   time, we write it?      Most of the time, notes.       We

22   write it on it that all night, she wake up, she was

23   aggressive, ranting.        And that's it.

24       Q.      Were you ever present when Esperanza left

25   the facility without permission?




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1        A.      Most, most of the time she, she would just

2    run away.

3        Q.      What would happen when she ran away, how

4    would y'all deal with that?

5        A.      Well, at times, if she was trying to run

6    away, we will call 911.       Then most of the time, she

7    will run away, they will look for her.         They can't

8    find her.     We call 911 maybe next -- there was a time

9    she ran away.       I don't know.   But most time she, she

10   wants to run away from the from the house.

11       Q.      Do you ever recall her destroying any

12   property at the Beretta Court facility?

13       A.      Yeah.    She breaking, breaking.    She does

14   that all the time, breaking the windows.

15       Q.      Now, on the day of September the 4th of

16   2008, when did you first arrive to the facility over

17   at Beretta Court?

18       A.      Surely, I, I don't -- what I use, I use my

19   phone as my watch.       I didn't -- once, because I ride

20   with them, as soon as they come back, because I will

21   behind schedule, kind of.       I'm supposed to be there

22   before they -- because I didn't have a car, I always

23   ride with them.       So when we came in, it's just give

24   them snacks, go and cook.       That is the first thing I

25   will do, go and cook, so that I will meet up with the




                                                            001047
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1    medication time.        So I don't check time.   The only

2    time I check time it is when I want to give

3    medication.        After that medication, I continue what I

4    am doing.

5        Q.      Okay.    So when you arrived at the facility

6    with the clients, that's as a result of you going

7    over to the day-hab and getting a ride; is that

8    correct?     The day-hab center, is that --

9        A.      Yes.    I go to the day-hab and get a ride,

10   yeah.

11       Q.      Okay.    So now, when you first saw Esperanza

12   Arzola on September 4, 2008, would that have been at

13   the day-hab facility?

14       A.      Huh?

15       Q.      When you first saw Esperanza, would that

16   have been at the day-hab facility?

17       A.      Yeah.    Day-hab -- no.   Yeah.   Yeah.

18   Day-hab.

19       Q.      And you rode back in the van --

20       A.      Yes.

21       Q.      -- to the Beretta Court.

22       A.      Yes.

23       Q.      So when you got to the Beretta Court

24   property, how did you get inside the property?

25       A.      The -- okay.     I think I got a key by -- the




                                                            001048
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1    lady had already given me the key, so I used my key

2    to get in.

3        Q.      Tell the jury what you started doing once

4    you got inside the property in terms of prepping for

5    your job and doing your job, now that you arrived at

6    the location.

7        A.      I brought all of them out of the van.       We

8    went inside.     I sat them down, gave home juice and

9    all that.     And I went to cook, cook their meal.        Then

10   when I finish, I call all of them to the table.           They

11   ask -- then Elisha likes taking her bath every,

12   every -- as soon as we come back.        So I think she

13   went, first of all, to take her bath or after

14   feeding, eating, she went and took a shower.

15                    Then Esperanza, after eating, I ask her

16   to go and -- she say she doesn't, anything she likes

17   she does.     She say no.     Then Tanya took her shower.

18   Then I asked Stella.        Then Jenny, I went to her

19   room -- well, Tanya takes, I think, 9:00 o'clock or

20   10:00 o'clock medication.        So after her shower, I left

21   Tanya in living room or something.        Then I went to

22   Tanya's room to -- I already gave Esperanza her

23   medication.     I went to -- oh, not Tanya -- Jenny's

24   room to clean her up.        As I was cleaning Jenny up,

25   Esperanza came in.     She, she was, like, trying to hold




                                                             001049
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1    Jenny, trying to do stuff.        And I told Esperanza, go

2    to your room, I will come and see you later in your

3    room.     Go back to your room.     I'm coming.   Let me

4    handle Jenny, okay.     She said she wanted to help.            I

5    said no, no, you won't be able to handle Jenny.            So

6    she left, she went to her room.

7        Q.      What happened after that?

8        A.      I cleaned Jenny up.     She got mad at me for

9    saying that.     So she, she kind of went to her room.

10   I didn't know.     I was busy.     I finished cleaning

11   Jenny, changed her clothings and all that.         So I was

12   doing what I was doing.     And then the next thing I

13   heard a big bang.     You know.     I was like, what's

14   happening?     And I went to Esperanza.     I saw that she

15   kind of broke the window.        I was like -- I became

16   scared.

17       Q.      What did you do after that?

18       A.      Then when she broke -- I can't recall.         I

19   can't recall what, really, the things I did, because

20   a lot of things happened that night.        So I kind of --

21   when she broke the window, I started calling.         I

22   started calling everybody.        She is acting up.   I

23   called the case manager.     When I called the case

24   manager, he didn't pick up the phone.        I called Inya.

25   I called the nurse.




                                                               001050
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1          Q.    Why did you call the nurse?

2          A.    I have to call the nurse to ask them what do

3    I -- because I saw a small scratch on her, on

4    Esperanza's -- I don't remember.           I can't remember

5    whether it was hand or legs.

6          Q.    So are you saying that when she broke the

7    window, she may have injured herself?

8          A.    Yeah.

9          Q.    That's why you called the nurse.

10         A.    Uh-huh.

11         Q.    That was something you were instructed to

12   do?

13         A.    Yeah.     If there is anything, you call the

14   nurse.     Yeah.

15         Q.    Did you talk to the nurse?

16         A.    Yeah.

17         Q.    What did she instruct you to do?

18         A.    I called the nurse.     The nurse say I should

19   give her a, I think she said -- I should go to first

20   aid box and give her something, Tylenol, something.

21   I can't remember.        I can't recall.     Then she was

22   ask -- the nurse asked me what the cut was.           I said

23   it's just a minor cut, you know.           Then she told me

24   what to do, that I should clean it up with hydrogen

25   peroxide.     But I think I told the nurse, I already




                                                                 001051
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1    done that, or after Esperanza -- I can't remember

2    again -- was after she came to me and apologized that

3    I went close to her.     I can't remember again, but

4    then --

5        Q.      Let me ask you a question.    I don't mean to

6    cut you off, but I want to see if we can't get

7    through this, okay?

8                     Did you ever get a chance to put the

9    hydrogen peroxide on her?

10       A.      I can't recall.   But then, she said -- I

11   think I said I already did that.      I can't remember.

12   Esperanza calmed down, came and apologized.       I am

13   giving you hard time.     I won't give you hard time no

14   more.     I think it was that time.   I don't know

15   because I was scared.

16       Q.      What do you recall happened after that?

17       A.      There was siren, kind of ambulance, fire

18   service.     I heard some noise, you know, outside.      I

19   said, let me check on what is happening.       So I peeked

20   outside, saw the, the van parked across the road.            So

21   I came back.     So Esperanza now said, what was that?

22   I said, it's like a house is on fire at the end of

23   the road, you know.     She, she now was saying she

24   wants to go to hospital, you know.       So I think --

25       Q.      Now, after she told you she wanted to go to




                                                           001052
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1    the hospital, what did you think about that, and did

2    you do anything in reference to it?

3        A.      I told her that the nurse said she will take

4    her to the hospital tomorrow.

5        Q.      Okay.

6        A.      You know, I told her that.     So I came

7    inside.

8        Q.      What happened after that?

9        A.      When I came inside, she's -- since she said

10   that she, she, she is giving me hard time and all

11   that, she was sitting at the -- in the living room.

12   She now went back to her, to her -- I believed her

13   because that's what she does, she will come and tell

14   you, oh, I'm giving you a hard time, yeah, yeah,

15   yeah.     Then she will keep coming.     So when she inside

16   her room, I now continue with what I was doing in the

17   house.

18       Q.      Anything significant happen after that?

19       A.      Yeah.    When, when, when she got back to her

20   room, I didn't know.        I was busy doing -- because I

21   still have to cook the food that they will take to

22   the day-hab.        I still have to wash their clothings,

23   you know.     So I continue with what I was doing.     I

24   didn't know she went inside to plan.

25       Q.      So what happened significantly after that?




                                                            001053
                                                                             180



1           A.      She now -- she -- I think she -- after that,

2    she, she set the house on fire.

3           Q.      Okay.     When did you first become aware that

4    there was a fire in the house?

5           A.      I didn't know because she, she closed that

6    door.

7           Q.      When did you first become aware of the fire?

8           A.      I heard the big, the alarm, you know, go

9    off.        So I heard a big bang, boom, like somebody

10   pulled iron or something.              I heard a big bang, you

11   know.       Then my mind went outside.         I said again, let

12   me find out what's happening.              I rushed outside.

13   When I rushed outside, I saw -- because Esperanza's,

14   Esperanza's window is very close to the front door.

15   So I, I kind of saw the -- it was -- I mean, the fire

16   was too much.           I couldn't believe myself.      And I

17   rushed back.           I came inside.     I shut the door.      I was

18   confused.        I didn't know what to do.         I went to

19   Elisha's room.           When I went to Elisha's room, all of

20   them they were sleeping.              I started shaking her.

21                          Excuse me.     I'm sorry.   (Crying.)

22                          I shook her.

23          Q.      After you shook her, what happened?

24          A.      She got up.     I took her outside.      I took her

25   outside.        So when I took her outside, I came back.




                                                                     001054
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1    Already, Esperanza had already opened that door.               So

2    when I came back, I was, like, going towards Jenny

3    and -- Jenny and Tanya's room.         When I came back,

4    there's -- I looked at that door.         I started

5    panicking when I looked at Esperanza door.            And it

6    dawned on me that all of us, because the fire is very

7    close to Esperanza's -- the window is very close to

8    Esperanza -- the front door.         So when I saw that and

9    I don't have the key, and my hands, my legs started

10   shaking.

11       Q.     So are you saying that you realized -- are

12   you saying that you realized that the back door, the

13   exit, is that what you are talking about?

14       A.     Yes.

15                     MR. PLUMMER:     Objection, leading.

16                     THE COURT:     Overruled on this one.

17       Q.     (By Mr. Sparks)       Are you saying that you

18   realized the back door, the exit, was not an option

19   for you to leave out of, had you been able to get

20   Jenny and Tanya?

21       A.     I got only one door there.       If that fire

22   gets to that front door, that's it.         We are finished.

23   The garage door is broken.         That door and the garage,

24   you know, one small door.         I don't have the key.        I

25   have access to just only one door.         So when I looked




                                                               001055
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1    at that thing and I said, if anything happens, me

2    too, I will get burned.     That was when my hands and

3    legs started shaking.     I became -- I started panic.

4        Q.      What happened after that, ma'am?

5        A.      Then I couldn't use the house phone because

6    I was actually -- I was moving around.     All the calls

7    I made was on my Cricket phone.     All the calls I

8    made, all the calls I made was on my Cricket phone.

9    Then I had to use the same Cricket phone.      When I

10   stepped -- it was then that I started calling

11   Esperanza, Esperanza.     Then we went out together.      I

12   was in front of that door, using my Cricket phone.

13   Well, my hands were shaking, my legs.     I was shouting

14   and nobody -- because that place is a lonely place,

15   you know.     You hardly see people moving around.      But

16   I went to the neighbors.     I was shouting.   Nobody

17   came out.     Then I knew the time -- I runs across to

18   the other side to -- was shouting so that people will

19   come out and come and help me.     But I can't remember.

20   That was the last thing.     Even when the, when the,

21   the 911 came, I passed -- I think -- I didn't know

22   anything again.     I was -- I woke up in the ambulance.

23       Q.      So you passed out?

24       A.      Yeah.

25       Q.      You were aware that you guys had had some




                                                           001056
                                                                      183



1    training regarding fires; is that right?

2        A.      Yes, sir.

3        Q.      Who was the person who was primarily

4    responsible for providing that training?

5        A.      Rosemary.

6        Q.      Do you know her last name?

7        A.      I know her as Rosemary.

8        Q.      Rosemary.

9                     Do you know how many times she came and

10   did training for you?

11       A.      I can't recall.    But I remember two times

12   she came and did -- she held up her watch and did

13   drills, you know.       Fire drills.     Fire -- before then,

14   I didn't know because I just came from Africa and

15   Africa is a different ball game.          I didn't even know

16   what fire drills was all about.          So she said, fire,

17   fire, you know.     I remember Jenny was in the living

18   room.    I had to push her outside the door, at the

19   door.    Then she would say, go and get -- call

20   Esperanza.

21                    I remember the second time he came, he

22   said I should -- in fact, I go to Esperanza's room,

23   call her.     I say, fire, fire.       I run after her out the

24   house.    I remember vividly two times she came -- at

25   times, she will come.       She will just do the paperwork.




                                                             001057
                                                                     184



1    We will not do the fire deal.

2        Q.   Let me stop you for just a second.         Am I

3    understanding that there were some times she came and

4    you guys did an actual fire drill; is that correct?

5        A.   Yes, sir.

6        Q.   And at all times that you did the fire

7    drill, were they always out of the front door?

8        A.   Yes, just front door, yeah.

9        Q.   Never attempted to leave out of the back

10   door?

11       A.   No.   No, sir.    Front door.

12       Q.   Never tried to go out the garage?

13       A.   No, sir.    No.   No key.     No.   It's broke.   We

14   don't use that.

15       Q.   Was she aware that you didn't have access to

16   those other two exits?

17       A.   Well, the, the person that is doing all the

18   job, all the job in the house, anything that is

19   broke, you talk to him, is Inya.        So Inya is aware

20   that the doors, the garage doors -- even when the

21   machines are broke, the washing machines are broke,

22   when they bring -- he is the one that will bring

23   people to come and repair it.        It's true that he

24   knows the garage door is not functioning.

25       Q.   But my question is:     Do you think Rosemary




                                                              001058
                                                                       185



1    was aware when she was doing the training, always

2    taking out the front door, that the back door was not

3    accessible?

4        A.      I don't know whether she is aware, but we

5    always go through the front door.         That is the only

6    door, just that one door.      We go through it.

7        Q.      You also stated, if I understand you

8    correctly, that there were a couple times when she

9    came out and she gave you some forms to sign?

10       A.      Yeah.   When, when -- end of the month, you

11   go to meetings, we have to sign forms.         If you don't

12   sign it, you know, they not going to pay you.         So all

13   the forms that were put out, you have to sign it.            At

14   times, they give to the driver to get some paperwork

15   for us to sign.      So we signed them.

16       Q.      So periodically, there was training over at

17   the headquarters, and is it your testimony that that

18   training primarily was done when you would go pick up

19   your check?

20       A.      Yes, sir.

21       Q.      But my question, though, is:      Out at the

22   property at Beretta Court, was there an occasion when

23   Rosemary showed up and gave you documents to sign

24   regarding fire training that did not include a

25   training?




                                                            001059
                                                                  186



1        A.   Excuse me, sir?

2        Q.   Did she show up and give you papers to sign

3    regarding fire training, mock fire drills, but y'all

4    didn't do no drills?

5        A.   I remember she comes, but she is in there,

6    in a hurry, you know, she will just tell you to sign,

7    you know, fill -- you know, something she will write,

8    you will sign, you know.       She is in a hurry.   I said

9    I can recall two times we did a proper drill.

10       Q.   So the, the ten months that you worked

11   there, you think you had two quality trainings on

12   fire drills?

13                   MR. PLUMMER:     Objection, misstates the

14   testimony of this witness, Judge.

15                   THE COURT:     The jury will use its own

16   recollection of the witness's testimony.

17                   MR. PLUMMER:     Okay.

18       Q.   (By Mr. Sparks)       You can answer the

19   question, ma'am.

20       A.   Sir?

21       Q.   During the time period you were there, you

22   think you had maybe two quality trainings on fire

23   drill?

24       A.   Yes, sir.

25       Q.   Let me ask you this question:       Did Rosemary




                                                          001060
                                                                   187



1    ever instruct you on the utilization of the fire

2    extinguisher?

3        A.      Nobody ever taught me how to use the fire

4    extinguisher.     I didn't know how to use it.       It was

5    just there, but I didn't know how to use it.

6        Q.      What about when you went to pick up your

7    check when they had different trainings and stuff,

8    did they ever train y'all or talk to you about the

9    utilization of fire extinguishers in the properties?

10       A.      Nobody ever told me.     The training, I sit

11   there, they talk.     Nobody ever taught us how to --

12   when fire starts, this is, you know, nobody.

13       Q.      When you would go to those trainings, did

14   you know you were going to be trained, or did you

15   expect to pick up your check and it was sprung on you

16   guys that before you get your checks you have to go

17   to a lecture?

18                    MR. PLUMMER:     Objection, leading.

19                    THE COURT:     Overruled.

20       Q.      (By Mr. Sparks)     You can answer the

21   question.

22       A.      When we get to any paperwork, maybe you

23   didn't sign it, you check it out, you didn't sign it,

24   it's on that, you must sign it before you collect

25   your check.     All the paperwork, they would put it




                                                             001061
                                                                  188



1    forward, they will bring all the paperwork for you to

2    you sign everything before you can collect your check

3    for all purposes.

4                     MR. SPARKS:    May I have a minute, Your

5    Honor?

6                     THE COURT:    Go ahead.

7        Q.   (By Mr. Sparks)       Let me make sure I

8    understand your testimony, ma'am.          After you went

9    back in to the home, when you realized that Esperanza

10   was coming out, the fire had become so engaged you

11   didn't have an opportunity to make any attempt to get

12   Jenny out nor Tanya James.       Is that a fair statement?

13       A.   Yeah.     That's what I said.       When I wanted

14   to -- when I looked at that door, it was all out

15   completely.    I panic.   That was what happened to me.

16   My hands and legs were shaking.       I didn't know what

17   to do again.     And it dawned on me that if I don't

18   take time, we will all get burned in the fire.

19                    MR. SPARKS:    Pass the witness, Your

20   Honor.

21                    THE COURT:    Mr. Thweatt.

22                    Mr. Terry.

23                    MR. TERRY:    A couple questions, Your

24   Honor.

25                    THE COURT:    Proceed.




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1                           CROSS-EXAMINATION

2    BY MR. TERRY:

3        Q.    Ma'am, could you please look at the monitor

4    and let me know, have you ever seen the

5    Individualized Emergency Plan for Jenny Wagner?

6                      MR. TERRY:    This is Plaintiff's

7    Exhibit 40.

8        A.    Yeah.     Yeah, that's information about Jenny.

9    I have seen -- it's attached in the binder.

10       Q.    (By Mr. Terry)       I guess from your review of

11   the document, you were familiar with the evacuation

12   procedure for Ms. Wagner.        And I'm looking here at

13   the bottom, which basically says, "Place the

14   cushioning materials on the floor beside the bed to

15   ease in transfer onto the floor and prevent potential

16   injury.   Wrap Jenny in a sheet or blanket.       Gently

17   lower Jenny from the bed to the cushion on the floor.

18   Get out of the home as quickly as possible to

19   minimize smoke inhalation and burns.        Raise Jenny's

20   arms over her head and lift her enough to get her

21   head off the floor.      Gently drag Jenny by the arms

22   and hands to the nearest exit."

23                     Did I read that correctly?

24       A.    Yes, sir.

25       Q.    Okay.     During the fire drills, or the two




                                                           001063
                                                                190



1    fire drills that you remember, did you ever do

2    anything like that?

3        A.   No, sir.

4        Q.   Did you ever do any sort of fire drill which

5    involved placing Jenny on a cushion or a blanket and

6    dragging her out?

7        A.   No, sir.

8        Q.   Okay.     The two fire drills that you did that

9    you do remember, what time of the days did those take

10   place?

11       A.   At times in the evening.     It took place in

12   the evenings because we usually get there -- you see,

13   I don't work afternoon.     About -- from weekdays, that

14   they don't go to day-hab.     So usually it took place

15   in the evenings.     Or at that times, weekends.   We --

16   I can't recall.     I can't recall the time it took

17   place.

18       Q.   When they took place, was everyone awake?

19       A.   Yeah.

20       Q.   Okay.     Did the drills ever take place when

21   everyone was asleep?

22       A.   No.     No, sir.

23       Q.   Ma'am, do you recall how much you made while

24   working at Four J's, per hour?

25       A.   They pay me $7.     $7.15.




                                                           001064
                                                                    191



1        Q.   Thank you.

2                     MR. TERRY:     Pass the witness, Your

3    Honor.

4                     THE COURT:     Mr. Plummer.

5                     MR. PLUMMER:     Thank you, Your Honor.

6                          CROSS-EXAMINATION

7    BY MR. PLUMMER:

8        Q.   Is it all right if I call you by your first

9    name, Amuche?

10       A.   Yes, sir.

11       Q.   How do you pronounce your last name?

12       A.   Udemezue.

13       Q.   Okay.     But I can call you Amuche.      And you

14   had a nickname also, Moochie; is that right?

15       A.   Yes, sir.

16       Q.   I want to first try to understand the

17   environment that you worked in when you started

18   working at Beretta Court.        And what I have done is

19   put a diagram up there to diagram the floor.         You can

20   see it in front of you on the monitor.         Let me see if

21   I can zoom it out a bit.        And I want to see if we can

22   agree on certain aspects of that house.

23                    Does that pretty much suggest and

24   identify the layout of the house?

25       A.   Yes, sir.




                                                              001065
                                                                  192



1        Q.   Okay.

2                     MR. PLUMMER:   Judge, may I approach

3    the -- well, I can do it from here.

4        Q.   (By Mr. Plummer)       This was Esperanza's room;

5    is that correct?

6        A.   Yes, sir.

7        Q.   This is Tanya's room?

8        A.   Yes, sir.

9        Q.   Next to that was the bath?

10       A.   Yes, sir.

11       Q.   Okay.     And, by the way, you can watch it on

12   the monitor right in front of you.

13       A.   Okay.

14       Q.   Can you see it there?

15       A.   Yes, sir.

16       Q.   Okay.     Next to the bath was the kitchen; is

17   that correct?

18       A.   Yes, sir.

19       Q.   Okay.     And the front door was here; is that

20   right?

21       A.   Yes, sir.

22       Q.   Okay.     I'm going to go ahead and mark that

23   front door so it's clear that we can identify it.

24   Let me mark that door.     I'm going to mark it in blue.

25                    Was it about right here?    Is that the




                                                          001066
                                                                      193



1    front door?

2           A.      Yes, sir.

3           Q.      Okay.     And if you were to walk in the front

4    door and you look straight back, you could see the

5    back door; is that correct?

6           A.      Yeah.     Yes.

7           Q.      Okay.     So would the back door be about here?

8    Straight back from the front door?

9           A.      The, the, the back door should be somewhere

10   here (indicating).

11          Q.      Okay.     When you say somewhere here, you mean

12   to the -- on this side or this side of the --

13          A.      Maybe somewhere here.

14          Q.      Somewhere over here?

15          A.      Yeah.     Somewhere here.

16          Q.      Okay.     In this area?

17          A.      A little bit --

18          Q.      This way?

19          A.      -- back.     Yeah.

20          Q.      This way?

21          A.      Yeah, yeah.

22          Q.      Okay.     Can I mark that for back door right

23   now?        Would that be a right and accurate description?

24          A.      Uh-huh.

25          Q.      Is that a yes?




                                                              001067
                                                                      194



1        A.     Uh-huh.

2        Q.     Is that a yes?

3        A.     Yes.

4        Q.     Okay.

5                       THE COURT:     We need you to use words,

6    not sounds like uh-huh or huh-uh.

7        Q.     (By Mr. Plummer)        I'm going to mark that

8    back door right here.         Is that right?

9        A.     No, sir.     A little more to the right.

10       Q.     A little bit more to the right.         Okay.

11   Right here?

12       A.     Yeah.

13       Q.     I'm going to mark that corrected door in

14   pink.    Is that all right?

15       A.     Okay, sir.

16       Q.     Okay.     Now --

17                      MR. PLUMMER:     Judge, may I ask the

18   witness to step down?         Well, actually, she can do it

19   from the large --

20                      THE COURT:     Hold on.   Slow down.    Are

21   you asking to approach the witness?

22                      MR. PLUMMER:     Yes, please, Your Honor.

23                      THE COURT:     You need to give her

24   something?

25                      MR. PLUMMER:     Yes, sir.




                                                                001068
                                                                   195



1                     THE COURT:   All right.   You can give her

2    the pointer.

3        Q.   (By Mr. Plummer)      Let me give you the

4    pointer and let you point on the big map, so I can

5    mark it as you point.

6                     Show me which -- where the entrance to

7    Jenny's room was.

8        A.   Jenny's room here.

9        Q.   Right there?     Okay.   Would that be about

10   here?

11       A.   Yes.

12       Q.   Okay.     Let me mark that.

13                    And the entrance to Esperanza's room?

14       A.   Here.

15       Q.   Okay.     And what about the entrance to

16   Tanya's room?

17       A.   It should be somewhere here.

18       Q.   Somewhere there?

19       A.   Uh-huh.

20       Q.   Would this be about right?

21       A.   Yes.

22       Q.   Okay.     Now there was another door from the

23   living room into Elisha's room; is that right?       Do

24   you see Elisha's room there?

25       A.   Yeah.




                                                          001069
                                                                  196



1        Q.   Can you show us where the door was to

2    Elisha's room?

3        A.   Here.

4        Q.   Okay.     Let me mark that.

5        A.   Then this one should be somewhere here.

6        Q.   Okay.     Let me move -- I'm going to scratch

7    out the one I have and mark it in another color a

8    little bit further over.        Point to it again so I can

9    see again, the back door.

10       A.   (Witness complies.)

11       Q.   Okay.     Very good.    About right here?

12       A.   Yes.

13       Q.   Okay.

14                    Now, if you would, Amuche, where was

15   the door to the garage, from the house?

16       A.   The door to the garage?

17       Q.   Yes.

18       A.   It was right -- you mean, the in and out

19   door to the garage?

20       Q.   The one that you go from inside the house

21   into the garage.

22       A.   Here.     Because if you bringing out trash,

23   you push it, you come to the living room.

24       Q.   Where I marked it, is that correct?

25       A.   Yeah.




                                                           001070
                                                                 197



1        Q.   Okay.     Now there was a door from the garage

2    to the outside; is that correct?

3        A.   From garage to outside?

4        Q.   Right.     On the far side of the garage.   Do

5    you remember that?

6        A.   (Indicating.)

7        Q.   Right there?     Okay.

8        A.   A small door.

9        Q.   Now, let me -- may I ask you about -- were

10   there any other doors from which you could get either

11   in the house or out of the house, other than these,

12   the front door, the back door and the garage door?

13       A.   This one is inside.      This one here should be

14   the garage, the main gate for the garage.

15       Q.   Correct.     But there was also the other door

16   on the left side of that garage; is that correct?

17       A.   This one.

18       Q.   Yes, okay.

19                    Now, if you would, was there -- were

20   there windows to Esperanza's room?

21       A.   The window to Esperanza, I think right here.

22       Q.   Okay.

23       A.   A window.

24       Q.   Okay.     Let me mark that.

25                    Would that be about here?




                                                          001071
                                                                   198



1        A.   Yes, sir.

2        Q.   Okay.     What about Jenny's room.

3        A.   Jenny's room will be --

4        Q.   You could see it from the front door, is

5    that right, when you walked in the front walkway?

6        A.   Jenny's.

7        Q.   You can't recall?

8        A.   I'm trying to recall.        Jenny's room.   I

9    think you can see.     Yeah.     Yes, sir.

10       Q.   So would it be just to the right of the

11   front door?

12       A.   I can't recall that.

13       Q.   Okay.

14       A.   I can't recall.

15       Q.   Now, what about Tanya's room?        Was there a

16   window in Tanya's room?

17       A.   Tanya's room, sure.        The outside, this way,

18   facing the neighbors.

19       Q.   Say that again.       I'm sorry.

20       A.   Tanya's window should be this way, facing

21   the neighbors.

22       Q.   So the window to Tanya's room would be over

23   here?

24       A.   Yes.     At the back.

25       Q.   Where?




                                                               001072
                                                                 199



1        A.   At the back -- at the side, not in front.

2        Q.   You mean where the kitchen is?

3        A.   No.     It should be somewhere here.

4        Q.   So where I put the squiggly line, it should

5    be somewhere in that general area; is that right?

6        A.   Yes, sir.

7        Q.   Okay.     Okay.   Now, let me understand -- you,

8    you can take your seat, ma'am.

9                     Let me understand what happened on the

10   4th, September of 2008.     You arrive with the clients

11   in the van; is that correct?

12       A.   Yes, sir.

13       Q.   And this was about 4:00 or 5:00 o'clock in

14   the afternoon?

15       A.   It should be around -- maybe after 6:00.

16   I'm not too sure.     I didn't check my time.   Maybe

17   after 5:00.     I don't really know.   I can't recall.

18       Q.   Okay.     It was after your shift started; is

19   that correct?

20       A.   Yes, sir.

21       Q.   And your shift started at 4:00 o'clock in

22   the afternoon, is that correct, or thereabouts?

23       A.   Since I ride with them, my shift starts when

24   I get there.     That's when my shift starts.

25       Q.   Okay.     And that was somewhere after 4:00




                                                         001073
                                                                 200



1    o'clock, maybe 5:00 o'clock in the afternoon.        Is

2    that a fair statement?

3        A.      That we arrived or when our shift supposed

4    to start?

5        Q.      When your shift was supposed to start.

6        A.      Maybe it should be around 5:00.   That's when

7    the shift starts.

8        Q.      All right.   And you all arrive in the van to

9    Beretta Court.     And when you get there, you go in the

10   front door, right?

11       A.      Yes, sir.

12       Q.      Use your key to go in the front door, right?

13       A.      Yes, sir.

14       Q.      And you take in all, all of the consumers,

15   all of the clients; is that correct?

16       A.      Yes, sir.

17       Q.      Now, did you have any assistance with the

18   driver, taking folks in the house?

19       A.      Once you get them, you know, it has a --

20   what you call it -- remote that -- like Jenny -- the

21   van has this remote for -- the ones, it brings it

22   down, you push Jenny out of the, the, the van.        But

23   that's it.     You bring all of them out, take them

24   inside.

25       Q.      You didn't have any trouble getting




                                                           001074
                                                                     201



1    everybody out of the van and into the house; is that

2    correct?

3        A.     No, sir.     Yes, sir.     Yes, sir.   You is that

4    correct.    I say yes.

5        Q.     Okay.     Thank you.

6                       By the way, you had been taught that the

7    home at Beretta Court was to be considered the home of

8    these clients; is that correct?

9        A.     Yes, sir.

10       Q.     And part of the reason for that is the whole

11   principle behind the idea of a group -- this kind of

12   group home was to try to integrate them as much as

13   possible back into the community; is that right?

14                      MR. TERRY:     Objection, Your Honor,

15   speculation, lack of foundation.

16                      THE COURT:     Rephrase your question.

17                      MR. PLUMMER:     Very well, Your Honor.

18       Q.     (By Mr. Plummer)        Did you understand what

19   some of the theory was about the group home setting

20   for these people?

21       A.     How do you mean, theory?

22       Q.     What do I mean by theory?

23       A.     No.     How do you mean, the setting.      You

24   know, it is just the -- made in such a way that it is

25   to be a home, like for them -- to be a home, just




                                                                 001075
                                                                  202



1    like your home, their own home.

2        Q.   Okay.    Okay.

3        A.   Except that they need assistance.

4        Q.   The only difference was they needed

5    assistance; is that correct?

6        A.   Yes, sir.

7        Q.   Okay.    So you bring everybody in.   I

8    assume -- and you correct me if I am wrong -- you

9    take Jenny into the living room, and the other

10   clients go their separate ways in the house.       Is that

11   a fair statement?

12       A.   You don't, you don't, you don't -- yeah, you

13   take -- yes, sir.    You take Jenny in the room.     For

14   Tanya, you have to tell her what to do.

15       Q.   Jenny?

16       A.   Tanya, you have to tell her what to do.

17       Q.   You tell Tanya what to do.     When you say

18   tell her what to do, did you tell her to go into the

19   living room and have a seat and watch TV, or did you

20   tell her to go to her room, or do you recall one way

21   or the other?

22       A.   You prompt her.    At times, you prompt her,

23   she gets what you are saying.     But most time you have

24   to help her out, take her to her room.     You take her

25   to her room.




                                                         001076
                                                                       203



1        Q.     You use the term "prompt."     Is that

2    something you were trained to do by Four J's, to

3    prompt the clients who needed it?

4        A.     You don't need training.     It's just, you

5    prompt -- you tell her all the time.       You don't say

6    it once.     You tell her, tell her, tell her.

7        Q.     No, I understand that.     But you are using a

8    term that seems like it's a fairly specialized term,

9    that you prompt certain clients because they need

10   prompting.

11       A.     Yes, sir.     Yes, sir.

12       Q.     You learned that through Four J's.        They

13   taught you that?

14       A.     Yes, sir.

15       Q.     And they taught you a whole lot of other

16   things about how to take care of your clients safely;

17   is that correct?

18       A.     Yes, sir.

19       Q.     So you prompt Tanya to go to her room.           Who

20   did you say took their shower first, or do you

21   recall?

22       A.     Elisha.     Elisha is the first person.     Once

23   we come back, that is the first thing.       It depends

24   on -- at times, she will take her food before she

25   goes to shower.      At times, she will shower before she




                                                             001077
                                                                     204



1    comes to eat.

2        Q.     To eat?

3        A.     Yeah.

4        Q.     Well, either way, things were normal.          You

5    proceeded to cook dinner for everybody.         Did they all

6    have special diets?

7        A.     They said Esperanza is on diet, but when you

8    cook she will tell you what she wants to eat and you

9    must start cooking again.         If she says she is not

10   going to take this, this is what you are going -- she

11   won't take what you cook, you a start all over again

12   cooking.    That's, that's it.

13       Q.     By the way, Esperanza was, of the people in

14   the house, the only one who didn't have a guardian;

15   is that correct.?

16                      MR. SPARKS:    I object, Your Honor,

17   speculation.

18                      THE COURT:    Lay your foundation.

19       Q.     (By Mr. Plummer)       Some of your -- some of

20   the consumers had guardians; is that correct?

21       A.     Can I have some water?

22       Q.     Okay.

23       A.     Thank you, sir.

24       Q.     Sure.

25                      Let me show you what's been marked as




                                                               001078
                                                                     205



1    Exhibit 44, which is the service plan for Esperanza

2    Arzola.     And let me ask you to take a second and look

3    at that.     And do you see on that service plan that

4    she was without a guardian, she didn't need a

5    guardian?     Where it says "legal status," what does it

6    say?

7           A.   Adult without a guardian.

8           Q.   Adult without a guardian?

9           A.   Yes.

10          Q.   So, of the folks in the house, she was a

11   fairly high functioning individual; is that correct?

12          A.   Yes, sir.

13          Q.   She could communicate.      She had her likes

14   and dislikes?

15          A.   Yes, sir.

16          Q.   She could carry on a conversation?      Is that

17   a correct statement?

18          A.   Yeah.     At times, her conversation made

19   sense.      At times, it doesn't make sense.

20          Q.   But she understood what she was doing in

21   most instances, right?

22                       MR. TERRY:   Objection, Your Honor, calls

23   for speculation.

24                       THE COURT:   Restate your question.

25   Return to your place at the bar, please.




                                                               001079
                                                                   206



1        Q.      (By Mr. Plummer)     Is that correct?

2        A.      Sir?

3                       MR. TERRY:   Objection.

4        Q.      (By Mr. Plummer)     From your perspective, did

5    she understand much of what she was doing when she

6    did it?

7        A.      I wouldn't talk for Esperanza.     But then, at

8    times, she talked sense.        And when she said she was

9    not going, like, I'm not going to give you hard time,

10   you know, at times you, you -- she will go and sleep,

11   she will keep quiet.       But at times, whatever she set

12   her mind to do, she will do it.        She, she is not

13   steady.     She is like this (indicating).     She is

14   unsteady.

15       Q.      All right.    You take folks in, you get

16   everybody situated, you start doing -- fixing dinner;

17   is that correct?

18       A.      Yes, sir.

19       Q.      And at some point in time, you start putting

20   together the medication for the evening; is that

21   correct?

22       A.      Yes, sir.

23       Q.      You had been taught how to do that, how to

24   parcel out the medication?

25       A.      Yes, sir.




                                                              001080
                                                                  207



1        Q.      Was that for everybody in the house?

2        A.      Yes, sir.

3        Q.      And you had to get the medicine out of the

4    medicine cabinet; is that correct?

5        A.      Yes.

6        Q.      It was a locked cabinet?

7        A.      It's not locked.

8        Q.      It wasn't locked?

9        A.      No, sir.

10       Q.      Was it -- by the way, did you have any

11   knives that were there that could be harmful to

12   somebody?

13       A.      Because of Esperanza and Elisha Campbell, we

14   don't use knife in the house.

15       Q.      Okay.   All right.    What was it that you --

16   that first brought to your attention that there was a

17   fire?

18       A.      I didn't -- actually, I didn't know there

19   was fire in the house.        The fire -- the house was

20   burning.     I didn't know.      She, she close that door.

21   I didn't know the house was burning.

22       Q.      But you did discover it was burning at some

23   point in time, right?

24       A.      Yes, sir.

25       Q.      And when you say it was burning, it was




                                                            001081
                                                                        208



1    confined to Esperanza's room; is that correct?

2           A.      Yes, sir.

3           Q.      And you go to Esperanza's room because you

4    heard a bang, I think you said; is that right?

5           A.      I didn't go -- I went outside because of

6    the, the, the siren we heard.           So my mind went

7    outside.        There is something happening there.       When I

8    heard the big bang, I rushed outside.           I went outside

9    first.        The second time, I just opened the door.

10   When I opened the door, I stepped out to find -- I

11   now saw the fire.

12          Q.      When you say opened the door, you mean you

13   opened the front door?

14          A.      The front door.

15          Q.      And you saw the fire through this window

16   here?

17          A.      Yes, sir.    Yes, sir.

18          Q.      All right.    Now, when you saw the fire

19   through that window, did you go to Jenny's room to

20   get her out?

21          A.      Sir, I didn't go to Jenny's room to get her

22   out.        I just -- when I saw the fire, I closed the

23   door behind me.

24          Q.      Let me stop you there.     Let me understand

25   this.       You step out the front door.




                                                               001082
                                                                    209



1        A.     Yes.

2        Q.     You look to your right, I guess, or left --

3        A.     Left.

4        Q.     -- and see a fire in Jenny -- in Esperanza's

5    room.    And you close the front door behind you.

6        A.     I came inside, closed the door.

7        Q.     So you got back, went back inside.

8        A.     Uh-huh.

9        Q.     And then you walked -- did you walk or run

10   all the way to Elisha's room?

11       A.     Yeah.     I went to -- I enter Elisha's room.

12   I was like, do I go left or do I go right.          And I

13   said, let me get Elisha first.       And I enter her room.

14       Q.     Okay.     And you shake Elisha, wake her up,

15   shout fire, fire, get out?

16       A.     I took her outside.     Right outside.     I took

17   her outside and came back.

18       Q.     You took her outside the front door?

19       A.     Yes, sir.

20       Q.     And came back in?

21       A.     Yes, sir.

22       Q.     By the way, at any point in time did you try

23   the back door?

24       A.     How will I go and try the back door when I

25   don't have the keys?




                                                             001083
                                                                    210



1          Q.   Well, that's not my question.     My question

2    is:    Did you try to turn the knob and push the back

3    door open, or pull it open?

4          A.   No, sir.     It's not, it's not, it's not open.

5    All the things I do in that house, if I want to take

6    them out for games or something, recreation, I go

7    through the, through the front door to the back.

8    It's only when we have -- maybe a light is having a

9    problem, even Inya will come and open that door,

10   because he have the key.       I don't have the key to

11   that back door.

12         Q.   Okay.     You get Elisha out and you go back in

13   the house, is that correct, after you get Elisha out?

14         A.   Yes, sir.

15         Q.   And then you go past the wall to the living

16   room, turn to the kitchen and turn down the hallway

17   where you can see Esperanza's door, right?

18                      Let me see if I can just do this.     You

19   first go from here over to here, right?

20         A.   Yes, sir.

21         Q.   And you take Elisha out, right?

22         A.   Uh-huh.

23         Q.   Then you go back in and come around over

24   here, right?

25         A.   Sir, I didn't get to that point.




                                                            001084
                                                                  211



1        Q.   Well, how did you get Esperanza out?

2        A.   I got -- already, by the time I took -- I

3    woke Elisha up and Esperanza -- by the time I came

4    inside, I saw Esperanza standing, standing.

5        Q.   Where was she standing?

6        A.   She was standing right here.

7        Q.   If you can take the pointer --

8        A.   Looking at the fire.

9        Q.   If you take the pointer and show me on the

10   big screen, where was Esperanza standing as you got

11   Elisha out, please, ma'am.

12                    THE COURT:   You can step down and show

13   us on the screen, please.

14       A.   Esperanza was standing right here, somewhere

15   here (indicating).

16       Q.   (By Mr. Plummer)      Okay.   Now, did she follow

17   you and Elisha out, or did she lead the way out, or

18   what happened?

19       A.   When I rushed in, when I came back, she was

20   just standing there looking at the fire.       Then I

21   shouted, Esperanza, Esperanza, fire, fire.       You know,

22   I was like -- I moved.

23       Q.   Show me where you moved with the pointer, if

24   you don't mind.

25       A.   I came in and I, I was like this point.




                                                             001085
                                                                      212



1    Then I looked at this door.

2           Q.     Oh, that's the first time you looked at the

3    door?       You hadn't looked at it before?

4           A.     When there was fire.    When I came in, I

5    looked at this, my eyes went to this door.

6           Q.     Okay.   But I'm -- Esperanza is there.      Does

7    she leave with you, or did she leave by herself when

8    you shouted fire, fire?

9           A.     She left.

10          Q.     And where did you go at that point in time?

11          A.     Then when I left -- I told her -- I thought

12   of using the phone, calling 911.         But then, when I

13   looked at that door, my hands and legs started

14   shaking.       It dawned on me then, then that was when I

15   decided to use my phone, my cell phone, to try to get

16   911.

17          Q.     Okay.   Were you in the house when you were

18   doing this or outside?

19          A.     I was, I was outside.    Out, outside.     I was

20   outside when I was -- because I didn't want to, I

21   didn't want to stay right there and do the call

22   because I was, I was kind of confused then.            And my

23   hands and legs, my hands were just shaking, you know.

24   You know, I was scared.

25          Q.     Jenny weighed 85 pounds; is that right?




                                                               001086
                                                                  213



1           A.   Sir, as a matter of fact, we had these

2    things (indicating) but I will tell you the truth, I

3    hardly read it.      But at times -- not that I know

4    everything in it.       I don't know how many pounds she

5    was.

6           Q.   Well, you had lifted her up before, right?

7           A.   Sir?

8           Q.   You had lifted her up before?

9           A.   I lift her up.    She is very heavy.

10          Q.   But you could lift her, right?

11          A.   Yes, sir.

12          Q.   And as you had been instructed, you could

13   have gone in Jenny's room, lifted her up, put her on,

14   on the floor on, on a comforter or blanket, and drug

15   her out, right?      If she was real heavy, right?     You

16   could have done that.

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

18          Q.   And the same thing, if you had gone in

19   Tanya's room and told her fire, fire, wake up, and

20   follow you out, right?

21          A.   Yes, sir.

22          Q.   And you had been taught to do that, hadn't

23   you?

24          A.   Sir, nobody taught me how to do that.

25          Q.   Okay.   By the way, having taken care of




                                                            001087
                                                                  214



1    Jenny for, what now, a year and a half -- was that

2    about the time you had taken care of Jenny before

3    this fire?

4        A.   Sir, I took care of her for, like, maybe ten

5    months or nine months.

6        Q.   Ten months.     So having taken care of Jenny

7    for ten months and having taken care of Tanya for ten

8    months, nobody really had to tell you to go in and

9    pick Jenny up and take her out of the house, right?

10   To protect her from the fire.

11       A.   Yes, sir.

12       Q.   Same thing with Tanya, right?

13       A.   Yes, sir.

14       Q.   So all the training in the world would not

15   have helped you in this situation because you

16   panicked; is that right?

17                  MR. SPARKS:     Objection, Your Honor,

18   speculation.

19                  THE COURT:     Overruled.

20                  MR. PLUMMER:     Would you read the

21   question back to her, please, ma'am.

22                  THE COURT:     No.   You will ask me for

23   readbacks.

24                  MR. PLUMMER:     I'm sorry, Judge.

25                  THE COURT:     Kathleen, would you read the




                                                          001088
                                                                    215



1    question back, please.

2                      THE COURT REPORTER:   Question:     So all

3    the training in the world would not have helped you in

4    this situation because you panicked; is that right?

5        A.     Yes.    Not really, because -- yes.      One, I

6    panicked because I, I got just one exit.         I would

7    have tried my best if I had another door in that

8    house.

9        Q.     (By Mr. Plummer)    Well, let's talk about

10   that for a second.      You had been trained that, if you

11   had no other way out, to put Jenny in a blanket or

12   Tanya in a blanket and roll out the window, right?

13       A.     Sir, it was after the fire that I went to

14   the workshop, they told me.      I have never had -- I

15   don't even know that you can go through the window.

16   They were saying, and do you know that you can go

17   through the window.      Nobody told me that.

18       Q.     Well, if you couldn't -- if you didn't think

19   about going through the window, you certainly could

20   have gone through the garage door, at least into the

21   garage, away from the fire, right?

22       A.     The garage door was broke.     Nobody used

23   that.    I, I didn't even -- it's only Inya that I see

24   with the maintenance man opening that door.          We

25   don't -- imagine if you are bringing out trash, you




                                                               001089
                                                                   216



1    come through the living room.       Is it healthy?   That's

2    what I'm talking about.

3        Q.     Well, I'm not worried about the healthy part

4    of it.    I'm worried about the safety part.

5                       Could you have gone through this door?

6        A.     That door, if you get through this door,

7    there's another gate, kind of main garage door, right

8    here.    The main garage door.

9        Q.     Okay.

10       A.     This is not the exit.

11       Q.     But it's a way out, right?

12       A.     It's a way, but when you get here, the main

13   garage door.

14       Q.     And there's another door here; is that

15   right?

16       A.     Yes, sir.

17       Q.     Okay.    And all the training in the world

18   didn't need to tell you that.       You knew that, right?

19       A.     I, I don't understand the question.

20       Q.     Now, you have made much of -- by the way,

21   you have made much of your, of Esperanza's, your fear

22   of Esperanza, Amuche.       You said quite a bit about how

23   she frightened you and you were afraid of her.        Is

24   that right?

25       A.     Yes, sir.




                                                          001090
                                                                  217



1        Q.   Okay.     And is it true that you kept a daily

2    service log on each of your clients?

3        A.   Yes, sir.

4        Q.   Okay.     And let me show -- may I approach,

5    Your Honor?

6                     THE COURT:     Me or the witness?

7                     MR. PLUMMER:     The witness, Your Honor.

8                     THE COURT:     Yes.

9        Q.   (By Mr. Plummer)        Let me show you

10   Defendants' Exhibit 29.       These are the service logs

11   that you kept; is that correct?

12       A.   Yes, sir.

13       Q.   And those are the service logs you kept on

14   Esperanza; is that correct?

15       A.   Yes, sir.

16       Q.   And if you look at the first page and then

17   look at the last page, tell me what period of time

18   they cover.

19       A.   This is June.

20       Q.   Okay.

21       A.   2008.

22       Q.   Okay.

23       A.   This is July 2008.

24       Q.   Okay.     So for, for roughly a full month,

25   isn't it true that not one time did you report in




                                                           001091
                                                                  218



1    those service logs your fear of Esperanza Arzola?       Is

2    that correct?     And if you want to take a look at

3    them, feel free to do so.

4        A.   I told you here that at times we, we just

5    make it -- we don't write that she was acting up.       I

6    said it -- I said because we got too much doing, at

7    times if everything goes fine, maybe she was acting

8    up, at the end of the day everything goes fine, we

9    don't put all those -- it's not -- you don't put all

10   that, you did that, you did that, you did that.       You

11   just write that you gave her medication and she was

12   fine.

13       Q.   Well, I guess the bottom line is, you never

14   reported in the progress notes your fear of

15   Esperanza; is that correct?

16       A.   Yes, sir.

17       Q.   Okay.    Now you were trained when you first

18   started working for Four J's; is that correct?

19       A.   Yes, sir.

20       Q.   You were trained on CPR?

21       A.   Sir, nobody trained me on CPR.     CPR is what

22   I got, what I used my money to do.     Based on that,

23   they employ me.     CPR and PMAB.

24       Q.   PMAB?

25       A.   Prevention and Management of Aggressive




                                                           001092
                                                                    219



1    Behavior.

2           Q.   That was the Satori system?

3           A.   There is the Satori, they gave us to train,

4    they gave us what they have.

5           Q.   The Satori was designed to teach you how to

6    deal with aggressive clients?

7           A.   Yes, sir.

8           Q.   And the CPR, you say you paid for it

9    yourself?

10          A.   Yes, sir.

11          Q.   Okay.    They also, in addition, they trained

12   you on how to care for your clients; is that correct?

13          A.   It depends on the care you are talking

14   about.      Yeah, they, they -- yeah, they train me, yes,

15   sir.

16          Q.   Okay.    Part of the training, of course, was

17   the annual service record that was maintained at the

18   house; is that correct?

19          A.   The annual?     Sir, I don't get your question.

20          Q.   Well, that's all right.     I will move on.

21                       Now you also acknowledged that the house

22   manager came by and -- every month and did fire

23   drills; is that right?

24          A.   Did what?

25          Q.   And did fire drills.




                                                           001093
                                                                      220



1        A.     Yes, sir.

2        Q.     And they were timed; is that correct?

3        A.     Yeah.

4        Q.     And that was done by Rosemary; is that

5    correct?

6        A.     Yeah.     Rosemary did it.     But at times, we go

7    to the workshop, they give us paperwork to sign.             I

8    told you before, and we sign, we must sign paperwork.

9        Q.     I beg your pardon.

10       A.     We signed those paperwork.        There were a

11   couple times, two times I remember vividly, she gave

12   me training on fire drills.

13       Q.     Well, whether you signed the paperwork or

14   not, what's important is that you were given the fire

15   drills and they were given to you every month.          Is

16   that correct?

17       A.     At the initial, I can't -- I don't -- I

18   can't recall, but at initial stage, I started that

19   job, I was not doing fire drills.

20                      MR. PLUMMER:     Judge, may I approach the

21   witness?

22                      THE COURT:     Yes.

23       Q.     (By Mr. Plummer)        Let me show us what's been

24   marked as Defendants' Exhibit 55 and ask you if you

25   will take a second and, first of all, confirm that




                                                             001094
                                                                    221



1    that's your writing.

2                     (Referenced document tendered to the

3                     witness.)

4        A.   That's my writing.

5        Q.   (By Mr. Plummer)      And your signature on

6    that?

7        A.   Yes, sir.

8        Q.   And if you would, turn to the highlighted

9    page.

10       A.   (Witness complies.)

11       Q.   If you would, is that your writing there,

12   the highlighted language?

13       A.   Yes, sir.

14       Q.   Would you read the highlighted language to

15   the jury, please.

16                    THE COURT:   Hold on.   That exhibit is

17   not in evidence.

18                    MR. TERRY:   Object, Your Honor, it's not

19   in evidence.

20       Q.   (By Mr. Plummer)      Well, is it true that you

21   have reported and said in your own hand that you were

22   trained and had fire drills every month?

23       A.   Yes, sir.     I reported that, sir, but then

24   she comes, she give you paperwork to sign.       Yeah.     I

25   reported that.     At times, she does the fire drill




                                                            001095
                                                                    222



1    proper.

2        Q.      Okay.    Every month, they were timed and

3    recorded.     Is that correct?

4                        Whether you signed the paperwork or not,

5    you went through a fire drill?

6        A.      Yes, sir.

7        Q.      Now, Amuche, you were sued in this lawsuit,

8    were you not?

9        A.      I was.

10       Q.      Okay.    And that -- you were first the -- you

11   were served in this lawsuit September of 2010.          Is

12   that right, or thereabouts?

13       A.      Sir, I can't recall the dates; but I know I

14   was served.

15       Q.      Okay.    And if the Court's record shows you

16   were served about that time, you wouldn't have any

17   reason to argue with that, would you?

18       A.      No, sir.

19       Q.      Okay.    And you were sued because the

20   Intervenor and the Plaintiff allege that you were

21   responsible also for this fire, right?

22       A.      Yes, sir.

23       Q.      Okay.    And then, after you gave your

24   deposition testimony, they dismissed you from this

25   lawsuit, right?




                                                             001096
                                                                223



1        A.   Yes, sir.

2        Q.   Was there ever any discussion -- oh, by the

3    way, you never hired a lawyer, did you?

4        A.   No, sir.

5        Q.   Any discussion with Mr. Sparks or

6    Mr. Thweatt about your dismissal before it happened,

7    that you recall?

8        A.   No, sir.

9                  MR. PLUMMER:     May I approach the

10   witness, Your Honor?

11                 THE COURT:     Yes.

12       Q.   (By Mr. Plummer)     Let me show you what's

13   been marked as Defendants' Exhibit 23 and ask, first

14   of all, that you turn to the third page of this, and

15   tell me whether you can identify your signature on

16   the third page.

17                 (Referenced document tendered to the

18                 witness.)

19       A.   Yes, sir.     That's my signature.

20       Q.   (By Mr. Plummer)     And which is it, the

21   second or third from the top?       Second from the top?

22       A.   Sir, the name, the -- I don't know.        The,

23   the signature proper is not my signature.       But the

24   name looks like what I -- the, the, this (indicating)

25   Amuche Udemezue looks like I wrote it, but this is




                                                          001097
                                                                    224



1    not my signature.        This is not my signature.

2        Q.      Okay.    Okay.     But the name this is your

3    name?

4        A.      Yeah.

5        Q.      And you wrote your name there?

6        A.      It looks like I am the one that wrote it.

7        Q.      Okay.

8        A.      I wrote it.

9        Q.      Okay.

10       A.      But the signature is not mine.

11       Q.      Okay.    Now, isn't it true that you attended

12   an in-service training session in June of 2008?

13       A.      Sir, I can't recall the in-service I

14   attended.     It's been a long time ago.       But I know I

15   attend every month.          They do kind of training.

16       Q.      And they do in-service, too; is that right?

17       A.      If you call it in-service training, they do

18   training every month --

19       Q.      Okay.

20       A.      -- before we collect our checks.

21       Q.      Okay.    At the in-service on June 6, 2008, do

22   you recall -- well, let me put it to you this way:

23   If you would, take a look at the Exhibit 23.             And

24   beginning -- if we can put 23 on the board.

25                       And beginning with, beginning with the




                                                                001098
                                                                225



1    portion down here that says, "She then called on

2    Amuche," halfway down the page.     Let me -- right here

3    (indicating).    Can you read that out to the jury,

4    please, beginning here (indicating).

5        A.   "She explained the procedures" --

6        Q.   Just the line just above that.     "She then

7    called on Amuche."

8        A.   "She then called Amuche to explain how she

9    will rescue Jenny, Tanya --"

10                    I don't know who is Spar- -- Spartans.

11   I don't know her.

12       Q.   Okay.

13       A.   "She called Amuche to explain how she will

14   rescue Jenny, Tanya --" should be Jenny, Tanya,

15   Elisha and Esperanza.

16       Q.   Okay.

17       A.   "She explained the procedures.     Ms. Uduma

18   explained to her that Jenny should be rolled down on

19   the floor.    She even emphasized to her that, if

20   possible, drag her through the window.     Don't worry

21   about minor injury.     Your goal should be to get her

22   out of the smoke alive.     She then explained to her

23   that the other individuals in the house are

24   ambulatory.     Wake them up and yell, 'Run, fire,' and

25   grab Tanya by the hand and run.     If the fire is




                                                          001099
                                                                  226



1    already too much, assist all the clients to fall on

2    the floor and crawl on their stomach."

3          Q.    So you went through and had those

4    instructions and that training in June --

5          A.    Sir.

6          Q.    -- of 2008 before this event?

7          A.    Sir, I would -- I'm here to tell you the

8    truth.     If -- I don't know where they got -- I did

9    not -- I did not -- nobody, since I started attending

10   in-service or everything, the monthly training,

11   nobody has ever cited example with me or calling me,

12   rolling, putting blankets on the floor, or telling me

13   stuff, look at how you roll.      Nobody.   I don't know

14   where this one is coming from.      Nobody has ever,

15   ever -- even if, look at Jenny, Tanya -- who is

16   Spartans?     I don't -- I don't even know her.    Elisha.

17   Nobody has ever done anything in this area

18   (indicating).      Nobody has ever trained me -- trained

19   me.

20         Q.    So nobody has ever gone through a fire drill

21   and trained you what to do?

22         A.    Ms. Uduma did not explain me.    She did not

23   train me.     She did not say all these things she wrote

24   here, they wrote here.      I don't know where this --

25   this is breaking news to me.      I don't know where it's




                                                            001100
                                                              227



1    coming from.

2        Q.    All right.    Now, you said you, you earlier

3    said you only had two fire drills that you could

4    recall.   But the truth of the matter is, you had them

5    every month; is that right?

6        A.    Yeah, it's a monthly thing.

7        Q.    Okay.

8        A.    When they started fire drills, it was a

9    monthly thing.

10       Q.    Okay.    And you earlier said you attempted

11   to -- you realized that you couldn't call 911 on your

12   Cricket phone; but that's not true because you did

13   make some phone calls that night, right?

14       A.    Yes, I made phone calls.

15       Q.    Okay.    And you also said that you fell out

16   at some point in time, but there was certainly ample

17   opportunity before you fell out to rescue Jenny and

18   to rescue Tanya; is that correct?

19       A.    I fell out -- I would have -- if not for the

20   door, if not for the door, it would have been a

21   different story.

22       Q.    Oh, you would have taken -- you would have

23   gone to Jenny's room, lifted her up and walked out

24   the back door.     Is that what you are saying?

25       A.    Because there is another -- yeah, that's




                                                         001101
                                                                  228



1    what I am saying.    If there are two doors there, it

2    would have been different.     My mind was going to --

3    just one door in the house, that's where my mind was

4    going.   And that door, very -- the window,

5    Esperanza's window is very close.       That was where my

6    mind was going.

7        Q.   So you weren't able to think clearly under

8    the emergency circumstance and you panicked; is that

9    right?

10       A.   I panicked.     My hands and legs were shaking.

11   I panicked.

12       Q.   By the way, you talked about Esperanza's

13   aggressiveness and all that.     I think you earlier

14   said that she might have been angry with you for

15   telling her to go back to her room while you were

16   cleaning up Jenny.     Remember that?

17       A.   Yes.

18       Q.   The truth of the matter, is it, Amuche, is

19   that Esperanza was extremely fond of Jenny; is that

20   right?

21       A.   Esperanza is not fond of anybody.

22       Q.   Well, she has often wanted to assist in

23   taking care of Jenny; is that correct?

24       A.   How can Esperanza that cannot even help

25   herself will be the one taking care of her?       I don't,




                                                          001102
                                                                    229



1    I don't take that kind of -- Esperanza can't -- how

2    can I allow her to come and be touching Jenny and

3    doing stuff with Jenny?

4        Q.   So you are saying that she wasn't fond of

5    Jenny?

6        A.   She, she, she -- I mean, she, at times,

7    she -- she, she is just on her own.          She is not fond

8    of anybody.    She is just on her own.        But she can

9    discuss -- I told you she can talk sense at times.

10       Q.   The answer is yes or no?

11       A.   Esperanza, I don't think -- no.          No.   No.

12       Q.   Were you afraid, when she came in that

13   evening and asked to assist you in taking care of

14   Jenny, that she wanted to try to hurt Jenny?

15       A.   Well, whether she is trying to hurt Jenny or

16   not, I would not allow Esperanza to take my place, to

17   be the one giving care to Jenny.       I, I was -- they

18   paid me, they paid me to give care to Jenny, not

19   Esperanza.    She is a client.     Esperanza.     That's why

20   we are there giving her medication, feeding her,

21   washing her clothes.    She can't help herself.

22                   MR. PLUMMER:     Pass the witness.

23                   THE COURT:     Mr. Sparks.

24                   MR. SPARKS:     Judge, no further

25   questions.




                                                             001103
                                                                    230



1                    THE COURT:     Mr. Terry.

2                    MR. TERRY:     Briefly, Your Honor.

3                        RECROSS-EXAMINATION

4    BY MR. TERRY:

5        Q.   Ma'am, do you think your job would have been

6    easier on the night of the fire, had you had

7    assistance of one additional caretaker?

8        A.   Yes.

9                    MR. TERRY:     No further questions, Your

10   Honor.

11                   THE COURT:     Mr. Plummer.

12                   MR. PLUMMER:     Nothing further of this

13   witness, Your Honor.

14                   THE COURT:     All right.     Thank you,

15   ma'am, you may be excused.       You can step down.

16                   (The witness was excused from the

17                   witness stand.)

18                   MR. PLUMMER:     Judge, if you would, we

19   would like her to remain under the rule.

20                   THE COURT:     We will ask that you wait to

21   be recalled.    You can wait out in the hallway.

22                   All right.     We're going to go ahead and

23   take our mid-afternoon break.       We will start back up

24   at 10 after 3:00.

25                   (Jury excused from the courtroom.)




                                                                001104
                                                                     231



1                     (Recess.)

2                     BAILIFF:     All rise.

3                     (The jury present, proceedings resumed

4                     in open court as follows.)

5                     THE COURT:     Thank you.   Please be

6    seated.

7                     Call your next witness, please.

8                     MR. THWEATT:     Your Honor, call Kevin

9    Kern.

10                    BAILIFF:     If you will stand here and

11   face the Judge.     Raise your right hand.      He will swear

12   you in.

13                    (Witness placed under oath.)

14                    THE COURT:     Have a seat, please.

15                    You may proceed.

16                               KEVIN KERN,

17   having been placed under oath, testified as follows:

18                        DIRECT EXAMINATION

19   BY MR. THWEATT:

20          Q.   Mr. Kern, would you tell the jury who you

21   are?

22          A.   Kevin Kern.

23          Q.   What do you do for a living, Mr. Kern?

24          A.   I'm the Director of Residential Services for

25   The Center in Houston.




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1        Q.     What is The Center?

2        A.     It is a social service agency that provides

3    residential vocational services for persons with

4    intellectual and developmental disabilities.

5        Q.     Where is The Center located?

6        A.     We have a main campus in Houston, and then

7    we also have a rural campus in Sealy area.     We also

8    have community group homes in the Houston community.

9        Q.     Where is your office at?

10       A.     I office at West Dallas and Shepherd in

11   Houston.

12       Q.     And if you could, just describe for the

13   jury, if you were to walk on to the grounds of The

14   Center's facilities there, what they would see, just

15   so we can get an idea.

16       A.     There is a six-story residential building,

17   high-rise building as you drive onto the property.

18   And then there are surrounding buildings that are

19   used for day program services and things of that

20   nature.

21       Q.     How long have you worked at The Center

22   serving persons with developmental disabilities here

23   in Houston?

24       A.     A little over four years.

25       Q.     What are your -- your job title is Director




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1    of Residential Services, correct?

2        A.      Correct.

3        Q.      Can you just describe the scope of your job

4    duties and responsibilities there.

5        A.      I am responsible for the overall operations

6    of all the residential programs at The Center.        That

7    would include both campuses, as well as the community

8    group homes.     We also have a respite care program and

9    a supported living program as well.

10       Q.      How many people, in terms of residents, do

11   you oversee?

12       A.      Approximately 310.

13       Q.      All right.   How long have you worked in this

14   industry?

15       A.      About 11 years.

16       Q.      Where did you work before you worked at The

17   Center?

18       A.      I worked for the Dr. Gertrude A. Barber

19   National Institute in Erie, Pennsylvania.

20       Q.      What did you do there in Pennsylvania?

21       A.      I was a residential program supervisor.

22       Q.      Job responsibilities similar to those that

23   you have at The Center?

24       A.      I was responsible for five community group

25   homes in -- that were in the Erie community.




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1        Q.      When you say a community group home, can you

2    tell the jury exactly what it is you are describing?

3        A.      We have -- I had five community group homes

4    that were under my direct service supervision.          They

5    were set up pretty much the same.        Anywhere from four

6    clients to a home, all the way -- I think my largest

7    one had six in it.       Varying different degrees of

8    needs.   Some were in wheelchairs, some were very

9    independent.     Just a variety.

10       Q.      And these houses that you are describing,

11   these are houses that you might envision in any

12   residential suburban bedroom community, right?

13       A.      Correct.

14                    MR. THWEATT:     Your Honor, may I approach

15   the witness?

16                    THE COURT:     Yes.

17       Q.      (By Mr. Thweatt)     Mr. Kern, I'm going to

18   hand you what's been marked as Plaintiff's

19   Exhibit 53, and ask you if you recognize that

20   document.

21       A.      Yes, I do.

22       Q.      Tell us what it is, please.

23       A.      It's my resume.

24       Q.      And is it current and up to date?

25       A.      I now have a master's degree that's not




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1    listed on here.

2        Q.   What is your master's degree in, sir?

3        A.   In public administration.

4        Q.   All right.

5                  MR. THWEATT:     Your Honor, I offer

6    Plaintiff's Exhibit 53 into evidence.

7                  (Referenced document tendered to

8                  counsel.)

9                  THE COURT:     Any objection?

10                 MR. PLUMMER:     No objection, Your Honor.

11                 THE COURT:     It's admitted.

12                 (Plaintiff's Exhibit 53 is received in

13                 evidence.)

14       Q.   (By Mr. Thweatt)     Are you a college

15   graduate, Mr. Kern?

16       A.   Yes, I am.

17       Q.   Where?

18       A.   Bellevue University.

19       Q.   What did you obtain your degree in?

20       A.   I have a bachelor of human and social

21   services administration and masters of public

22   administration.

23       Q.   Do you hold any certifications within the

24   State of Texas?

25       A.   I'm certified as an assisted living




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1    administrator.     It's not really a state

2    certification, but I have that certification.

3        Q.   Do you hold any other certifications?

4        A.   Not at this time.

5        Q.   Okay.     All right.   You understand that I

6    have retained you on behalf of my client, Jenny

7    Wagner, to examine what happened related to a fire

8    September 4, 2008 at a Four J's community home owned

9    by Ms. Uduma and operated by Four J's Community

10   Living Center?     Do you understand that?

11       A.   Yes, I do.

12       Q.   We have paid for your time, right?

13       A.   Yes.

14       Q.   Not for your testimony, but for your time

15   spent reviewing the files and coming here to testify

16   is that correct?

17       A.   That is correct.

18       Q.   I want to speak with you, Mr. Kern, about

19   the standard of care -- well, let me ask you this

20   first:   Let's tell the jury what you reviewed before

21   you came here to testify.       Just give a brief synopsis

22   of the materials you were provided in relation to

23   this matter.

24       A.   I reviewed some documents from Four J's.

25   Specifically the evacuation plans.       I reviewed the




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1    deposition of the employee that was working the

2    evening of the fire, the arson report from the

3    Houston Fire Department.

4        Q.   Did you review documents related to the

5    residents who lived there as well?

6        A.   Yes, I did.    Yes.

7        Q.   What is your understanding as to how many

8    residents lived at 16355 Beretta Court?

9        A.   My understanding is that there were four

10   residents.

11       Q.   Okay.   And do you have an understanding as

12   to Jenny Wagner's condition, my client, at the time

13   of the fire?

14       A.   Yes, I do.

15       Q.   Can you describe that, please?

16       A.   From my understanding, she had profound

17   mental retardation, has that.   She has cerebral

18   palsy, she's blind and basically is depending on

19   staff for total care.

20       Q.   And are you familiar with taking care of the

21   needs of persons who are similarly situated as Jenny

22   in your current job?

23       A.   Yes, I am.

24       Q.   And that's something you have been working

25   in and around, those types of individuals, for your




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1    professional career; is that right?

2        A.      Eleven years.

3        Q.      Have you ever actually supervised staff in a

4    residential care facility like the one we see at

5    Beretta Court?

6        A.      Yes, I have.

7        Q.      And do you currently supervise such

8    facilities here in Houston on behalf of The Center?

9        A.      Yes, I do.

10       Q.      How many homes do you supervise now?

11       A.      We have 11 group homes in our rural campus

12   area, and we have five within the Houston community.

13   And then we also have, under the HCS program, we have

14   34 foster care homes as well.

15       Q.      All right.     Mr. Kern, are you familiar with

16   the standard of care for a residential care provider

17   who is charged with attending to the needs of someone

18   in Jenny Wagner's position?

19       A.      Yes, I am.

20       Q.      What does the standard of care require with

21   regard to Jenny's personal safety, given her

22   condition?

23       A.      Well, safety is always the number one

24   priority.     But, but as a residential provider,

25   service provider, really just meeting all of the




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1    needs for each individual person, whatever those may

2    be.

3           Q.      And does the standard of care in your

4    industry require an examination of not only, say,

5    someone in Jenny's position, but how she might be

6    situated in terms of other residents in a home that

7    she is living under the same roof with?

8           A.      Certainly whenever, whenever anybody is

9    admitted into a facility, it changes the dynamics of

10   the whole facility.          So whenever anybody comes into a

11   facility, you do have to kind of look and see how

12   they complement each other and where those needs may

13   lie.        And that has to be done with each individual.

14          Q.      Okay.   Would you expect some sort of team

15   meeting to examine how the dynamic between residents

16   would occur?

17          A.      Yes.    Typically, what should happen is that

18   each, each individual should have a care team that

19   would consist of the case manager and, and various

20   members of the team, people who are going to be

21   providing direct care for those people that are

22   moving into the home.          And a discussion of where they

23   are at, anything from dietary needs to, really, all

24   of their needs should be discussed and a plan should

25   be developed as to what needs to take place or how it




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1    will be set in place to make sure that that happens.

2        Q.   Okay.   You have mentioned a little bit about

3    safety is the priority.     And I want to talk to you

4    about what the standard of care in your industry

5    requires in terms of inspections of, say, rooms where

6    residents in a residential home may live.     Can you

7    tell the jury about that.

8        A.   Sure.   Certainly, clients do have rights

9    and -- however, when their safety -- when safety is

10   of concern, when someone feels that there is a safety

11   risk, through past history of behaviors or whatever,

12   safety trumps that, trumps some of those things.        So

13   you may, for instance, go into somebody's room.      If,

14   if you feel that there is a potential danger in that

15   room, you would want to go in and make sure that

16   there is nothing in there that is potentially

17   hazardous or dangerous.

18       Q.   Now, you understand that there was a woman

19   named Esperanza Arzola living in the Beretta Court

20   residence on the night of September 4, 2008?

21       A.   Yes, I do.

22       Q.   And can you describe your understanding of

23   the types of mental issues that she was facing before

24   this fire?

25       A.   I know that she had a past history of




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1    physical aggression, of self-injurious behaviors,

2    elopement, verbal aggression.

3        Q.   When you use the word elopement, that's --

4    when we hear the word elope, most of us think about

5    getting married.   Does that have a special meaning in

6    your industry?

7        A.   Yes, it does.   Elopement in this industry,

8    basically, is when somebody leaves the facility, the

9    home, wherever the services are being provided,

10   without permission or without letting anybody know.

11       Q.   For someone like Esperanza Arzola who had

12   those kinds of issues or concerns, what would the

13   standard of care require in relation to permitting

14   her access to an incendiary device such as a

15   cigarette lighter or matches, something like that?

16       A.   Certainly, someone with that history, I

17   would say should not have any access to those types

18   of things.

19       Q.   And what does the standard of care require

20   in your industry to prevent someone with Ms. Arzola's

21   issues from coming into contact or perhaps smuggling

22   an item like that into the residence?

23       A.   Well, I think adequate -- making sure that

24   you have adequate supervision, for sure.   But then

25   also having a behavior plan in place that will give




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1    staff that are working directly with her directions,

2    instructions, guidelines to follow if they should see

3    certain types of behaviors.   And, and it would

4    possibly, more than likely, also involve room

5    inspections if you felt that there was that

6    potential.

7        Q.   What about searches of the resident

8    themselves, a pat-down to search for contraband

9    items?

10       A.   Again, if safety is -- if one feels that

11   safety is at risk at that time, then safety should

12   trump their right to not have that done, I guess.

13       Q.   Does the industry standard require that

14   safety of not only the resident who may be a threat

15   to herself, but does it also require consideration of

16   other residents in the home who really have nothing

17   to do with that person's issues?

18       A.   Absolutely.

19       Q.   Persons, in your experience, that you have

20   observed with bipolar disorder, the history of

21   suicide, history of aggression, property destruction,

22   verbal abuse, those kinds of things, what have you

23   seen with regard to their ability to make rational

24   and clear-headed decisions, in your experience?

25       A.   Often they are not able to do that.      They




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1    are not able to realize the consequences of their

2    actions at the time that they are upset.

3        Q.      And I suppose, in your industry, you may

4    have people like that who are even legally judged

5    incapable of living without a guardian.       Is that

6    correct?

7        A.      That is correct.

8        Q.      In your industry, does that necessarily

9    mean, just because they don't have a guardian, that

10   they should be permitted access to things like

11   cigarette lighters without supervision?

12       A.      Absolutely not.    Again, safety has to be the

13   number one priority.

14       Q.      I want to talk to you about staffing in a

15   residential group home like the one we had at Beretta

16   Court.     What is the standard of care in terms of how

17   many staff should be in a house with, say, four

18   residents at any given time?

19       A.      Well, it's -- there isn't a blanket answer

20   for that.     It's not a cookie cutter type of a

21   situation.     There are four-bedroom group homes that

22   may be totally appropriate to have it single staffed.

23   And that's the purpose of those team meetings, to see

24   what the individual needs are of each client that

25   lives in the home, because that's really what drives




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1    and dictates what your staffing pattern should look

2    like.    In the case of Beretta Court, it's my strong

3    opinion that that house most definitely needed to be

4    double staffed.

5        Q.     Why is that, sir?

6        A.     Basically because of the individuals needs

7    of those residents that lived in that home.       One of

8    them being -- requiring total care.    Several of them

9    that had behavioral issues or concerns.    I would

10   think it would be very difficult or next to -- it

11   would be impossible to be bathing a client in the

12   bathroom when you may have another client that's

13   trying to leave the home or have a physical

14   altercation with another resident.    I don't know how

15   you would do that safely.

16       Q.     Have you ever seen situations where the

17   presence of an additional staff member increased the

18   overall safety of everybody in the home?

19       A.     Absolutely.

20       Q.     I want to talk to you about what the

21   standard of care requires in terms of supervision.

22                   You mentioned an example of the bathing

23   a resident while other residents may be unsupervised

24   within the home.    What about in the event of an

25   emergency situation, a fire or, you know, something




                                                          001118
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1    that requires evacuation of the home?      In your

2    industry, what is does the standard of care require

3    with regard to being able to quickly and safely

4    evacuate people who live in a group home?

5        A.   The standard of care requires that, that

6    one -- specifically within a four-bed HCS group home

7    such as Beretta Court.

8                   MR. PLUMMER:   Excuse me.    Can you repeat

9    that?

10       A.   Specifically when you are talking about a

11   four-bed group home such as Beretta Court, each

12   individual has to be able to -- one, the home needs

13   to be sprinkled unless -- and when I say sprinkled, I

14   mean they must have a sprinkler system in the home --

15   unless each of the individuals are able to evacuate

16   within three minutes, which is a prompt evacuation

17   score.   And that has to be consistent across various

18   shifts at different times of the day and night.

19                  And it has to -- there are some certain

20   protocols, such as a third shift drill shouldn't be

21   done, say, ten minutes after they go to bed because

22   you want them to be asleep.    So a third shift drill

23   should be ran after they have been asleep for two

24   hours and not any later than two hours from when they

25   normally would get up out of bed.




                                                          001119
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1        Q.   (By Mr. Thweatt)     These residents, in order

2    to make this situation as realistic and perhaps even

3    a little chaotic, should be dead asleep or deep

4    asleep; is that correct?

5        A.   Absolutely.   Because fires happen at all

6    different times of the day, obviously, so you want to

7    make sure that you are looking at all scenarios.

8                  Another thing that is very important is

9    that the fire alarm itself be used for each of those

10   drills because, for some people that have diminished

11   capabilities, they may just associate that sound with

12   the need to get out of the home and may equate that,

13   versus just words saying, there is a fire, come on.

14       Q.   And are those the kinds of drills that you

15   have presided over in your capacity as the Director

16   of Residential Services here in The Center?

17       A.   Yes, as well as in Pennsylvania.

18       Q.   Let me talk to you about what the standard

19   of care requires in terms of priority of removal in

20   an emergency situation.     Can you talk about that in

21   your industry, what that standard of care requires?

22       A.   The standard of care would dictate that the

23   person with the most degree of disability be removed

24   from the home first because they are the one that are

25   going to require the most.     On the way out of the




                                                        001120
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1    home, you can also be verbally cuing residents that

2    are able to follow those types of cues to exit the

3    home as well.   But you would always want to evacuate

4    the person with the most severe degree of disability

5    first.

6        Q.   And is there a standard of care in your

7    industry, sir, with regard to residents with mental

8    or physical disabilities having access to things

9    other than cigarette lighters, say, knives or items

10   that they could use to harm themselves or others?      Is

11   there an industry standard that has to be met?

12       A.   Well, again, that's the purpose of those

13   individual team meetings.   If you have clients that

14   have a history of physical violence or physical

15   aggression, then certainly you wouldn't want to leave

16   things available to them that may cause that.     On the

17   other hand, if you have, if you have a house full of

18   clients that do not display those types of behaviors,

19   you may have those types of things out, such as like

20   a kitchen knife, because they may very well be

21   helping prepare some of their about meals.   Again,

22   it's individual specific.   It's customized care, in a

23   sense.

24       Q.   In a residential group home facility, such

25   as the one we saw at Beretta Court, is there an




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1    industry standard of care with relation to fire

2    exits, how accessible those exits should be in the

3    event of a fire?

4        A.   All means of egress should be clear of

5    obstacles, to include a locked door.    But should be

6    even clear of obstacles in the way.    Even a chair in

7    front of them is not permitted.

8        Q.   And would a deadbolt lock that requires key

9    access in the event of an emergency, a fire, is that

10   something that would meet the standard of care in

11   your industry in a residential group home?

12       A.   The only way it would meet the standard of

13   care is if all residents in the home had access to

14   the key and that they could mentally and physically

15   be able to open up the door with the key.    That would

16   be acceptable.

17       Q.   And you know, certainly, from Jenny's

18   Wagner's condition that she never could have met that

19   criteria in the Beretta Court Home.

20       A.   No.

21       Q.   And you are familiar -- well, you know from

22   looking at the Houston Arson Fire Department photos

23   in this case that there was a fire extinguisher in

24   the Beretta Court home.    You have seen pictures of

25   that, have you not, sir?




                                                       001122
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1        A.      Yes, I have.

2        Q.      You have seen the pictures reflecting it was

3    not used.

4        A.      Yes, I did see that.

5        Q.      Is there a standard of care with regard to

6    training in how to use a fire extinguisher for a

7    staff member charged with looking out for the

8    interests of mentally and physically disabled persons

9    in a group home?

10       A.      Well, certainly, anybody who is working

11   directly with your clients in your homes, you want

12   them to be as protected as much as possible.       And

13   that's why there is fire extinguishers in the home.

14   The standard of care would dictate that you would

15   train those staff on the use of the fire

16   extinguishers and make sure that they have the

17   understanding of how to utilize it.       Oftentimes, a

18   small fire may be able to be put out before it

19   becomes a significant event.

20       Q.      Is training on how to use a fire

21   extinguisher something that you require of employees

22   and staff members of your facility here in Houston?

23       A.      Yes, it is.    That's part of our annual

24   training, as well as our orientation.

25       Q.      Now, you have outlined the standard of care




                                                            001123
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1    in a number of different ways with relation to what's

2    supposed to happen inside of a house like Beretta

3    Court.     And I want to ask you whether you have an

4    opinion, based upon your review of the materials you

5    have been provided, as to whether or not the Four J's

6    Community Living Center in this case met the standard

7    of care.

8        A.     I don't feel that they did.

9        Q.     Why is that?

10       A.     I think there were some significant safety

11   issues that could have been addressed or should have

12   been addressed.     Mainly, some of the things that

13   stuck out in reviewing the various documents was that

14   it didn't appear to me that the staff had really any

15   new employee orientation training or any training to

16   specifically deal with each individual client in

17   dealing with their individual behaviors, their

18   individual needs.

19                    I also don't think that the house was

20   staffed at the level that it should have been.

21   Especially when you take into account the, the degree

22   of disability as well as the types of behaviors that

23   the residents that lived in that home displayed.

24                    I think they didn't meet the need, the

25   standard when they had a door that had a lock that




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1    required a key and yet not all the residents, if any

2    of them, may have been able to, to operate that key to

3    get out.    As well as it doesn't appear that it was

4    even available at all for even the staff.          So --

5        Q.     You know from your review of the materials

6    and the discussions with me that the home itself at

7    Beretta Court was owned by Ms. Anthonia Uduma, who

8    was the President and CEO of Four J's.          Are you aware

9    of that?

10       A.     I am.

11       Q.     Just out of curiosity, do you see that kind

12   of activity in your industry frequently, where the

13   president or CEO might own a home and then lease it

14   back to their home healthcare company?

15                      MR. PLUMMER:     Objection, relevance.

16                      THE COURT:     Overruled.

17       A.     I am not familiar with that, no.

18       Q.     (By Mr. Thweatt)        Do you have an opinion,

19   sir, as to whether the president and CEO of a company

20   dedicated to caring for mentally retarded persons

21   should appreciate and understand that if they buy a

22   home that's going to house mentally retarded

23   residents, should that person, based upon your

24   knowledge, training, skill and experience, be able to

25   appreciate and foresee the dangers that a fire would




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1    create?

2                     MR. PLUMMER:     Objection, Your Honor.

3                     May we approach?

4                     THE COURT:     Yes.

5                     (Bench discussion.)

6                     MR. PLUMMER:     Judge, I object to the

7    question and any possible answer from this witness for

8    two reasons.

9                     Number one, I don't think the proper --

10   that he has been shown competent to testify on that

11   issue.    His expertise is in group homes and not in

12   this area.     That's number one.

13                    Two, they have supplied an expert

14   report, and there is nothing in there in this regard.

15                    THE COURT:     Did you designate him to

16   address this type of issue?

17                    MR. THWEATT:     We designated him as an

18   expert to address both the property owner and the

19   standard of care for a facility such as Four J's.

20                    The report he is mentioning, Judge,

21   under the rules cannot be used.        It just can't be.

22                    THE COURT:     This was your Chapter 74?

23                    MR. THWEATT:     That's right.

24                    THE COURT:     So this was a report after

25   expert designation.     This was your Chapter 74?




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1                    MR. THWEATT:     Correct.   And he's not

2    been deposed in this case.

3                    THE COURT:     Did you designate him in

4    your disclosures as a testifying expert?

5                    MR. THWEATT:     Yes, we did.

6                    THE COURT:     Do you have that designation

7    for me?

8                    MR. THWEATT:     I don't know that I have

9    it with me, Judge.    I really don't.

10                   THE COURT:     Anybody have their expert

11   disclosures?

12                   MR. PLUMMER:     We will check.

13                   MR. SPARKS:     I think we have them.

14                   (Referenced document tendered to the

15                   Court.)

16                   THE COURT:     These are Intervenor's

17   designations.

18                   This is it?

19                   MR. SPARKS:     That's all we have, Judge.

20                   MR. THWEATT:     Mr. Terry is telling me we

21   don't have it listed.     In light of that, Judge --

22                   THE COURT:     Do you want to move on?

23                   MR. THWEATT:     I will move on.

24                   THE COURT:     All right.   Have a seat.

25                   (Open court.)




                                                             001127
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1        Q.     (By Mr. Thweatt)    Mr. Kern, these

2    residential group homes that you have described here

3    in Houston, are those owned by The Center?

4        A.     We lease the homes.

5        Q.     Who do you lease them from?

6        A.     Through apartment complexes, and we have, we

7    have four apartment group homes that we lease through

8    apartment complexes.     And then we have a residential

9    home that we purchased through a landlord.

10       Q.     I'm sorry, you --

11       A.     We purchased through an individual landlord.

12       Q.     Okay.   Do you coordinate the kinds of

13   activities and the kinds of safety concerns that you

14   have to carry in your industry in junction with the

15   landlords you lease theses properties from?

16       A.     Before we open a group home, whether it be

17   in an apartment or a house, one of the first things

18   we do before anybody even moves into the home, we do

19   an environmental inspection to make sure that it

20   meets the needs of the individuals that are going to

21   be moving into the home.       So that's done before they

22   move in.

23       Q.     Okay.   And what's the purpose of that?

24       A.     Just to make sure that, if we are agreeing

25   to provide services, that we can and we can do so




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1    safely.

2        Q.     In other words, based on your knowledge,

3    training, skill and experience, if you walked into a

4    house that was going to be leased by The Center and

5    it didn't have overhead sprinklers but you knew that

6    all the residents in there were not going to be able

7    to accomplish the prompt evacuation requirement that

8    you set, what would you then do with regard to the

9    landlord, the owner of the property?

10       A.     We would either have to see if they would

11   let us put them in or we would have to move on to

12   another property.

13       Q.     Would you make a request of the owner to

14   modify the property to make it safe?

15       A.     Well, the discussion with the owner would be

16   done before we even decided to lease the home to

17   begin with.

18       Q.     Okay.     All right.

19                      MR. THWEATT:     Your Honor, I'll pass the

20   witness.

21                      THE COURT:     Mr. Sparks.

22                      MR. SPARKS:     Briefly, Judge.

23                           CROSS-EXAMINATION

24   By MR. SPARKS:

25       Q.     Mr. Kern, you also reviewed the fire records




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1    in reference to Tanya James; is that correct?

2        A.   That's correct.

3        Q.   And would the same applicable standards of

4    care that you outlined in the examination with

5    Mr. Thweatt apply to her?

6        A.   Absolutely.

7        Q.   And you know her to be a resident of the

8    same facility; is that correct?

9        A.   That's correct.

10       Q.   And would your testimony also be the same in

11   terms of the standard of care regarding the safety

12   issues of that facility?

13       A.   Yes, it would.

14                 MR. SPARKS:     Pass the witness, Judge.

15                 THE COURT:     Mr. Plummer?

16                 MR. PLUMMER:     Thank you, Your Honor.

17                      CROSS-EXAMINATION

18   BY MR. PLUMMER:

19       Q.   Mr. Kern, your homes are certified as ICF

20   homes?

21       A.   We have certification for ICF, HCS and

22   assisted living.

23       Q.   And HCS is what?

24       A.   Home and Community-based Services.

25       Q.   And the theory behind the Home and




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1    Community-based Services program is to try to get the

2    folks with disabilities out in the community as much

3    as possible?

4        A.      That's correct.

5        Q.      And I believe you said that some of the

6    homes that you use are in apartment complexes.        Is

7    that correct?

8        A.      That's correct.

9        Q.      That includes some HCS homes?

10       A.      Yes.

11       Q.      Okay.   Yours is a highly regulated industry;

12   is that correct?

13       A.      Yes, it is.

14       Q.      DADS one of the agencies that governs the

15   activity that you do?

16       A.      Yes.

17       Q.      What is DADS?

18       A.      The Department of Aging and Disability

19   Services.

20       Q.      And HCS has also some regulatory authority

21   over what you all do for those homes; is that right?

22       A.      That is correct.

23       Q.      And similarly, the ICF has standards for the

24   intermediate care facilities that you have, correct?

25       A.      Correct.




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1        Q.     And foster homes, same thing?

2        A.     Foster homes fall under our HCS licensing.

3        Q.     And if you don't meet those standards, they

4    shut you down; is that right?

5        A.     Well, I mean, they don't automatically jump

6    to that.    They let you attempt to fix the problem

7    first.     But, ultimately, if you do not comply with

8    the regulations, they can.

9        Q.     That includes health and safety components

10   to the regulations; is that correct?

11       A.     That is correct.

12       Q.     So if one of your group homes didn't meet

13   the safety standards necessary for the safe housing

14   of your clients, you would face closure; is that

15   correct?

16       A.     Again, they would give you the opportunity

17   to fix the problem first through submitting plans of

18   correction, and then they would come out and inspect

19   the home again to make sure that you complied with

20   the standards at that time.     Closure is down the road

21   if you continue to not meet the standards.

22       Q.     If you are not in compliance, ultimately

23   they shut you down, right?

24       A.     Ultimately, that can be the case.

25       Q.     And in none of the stuff you reviewed -- you




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1    were given a lot of information by Mr. Thweatt.           In

2    none of the stuff you reviewed was Beretta Court

3    threatened with being shut down, right?

4        A.      I would disagree with that.

5        Q.      What citation was issued to Beretta Court

6    for not complying with safety standards?

7                     MR. THWEATT:     Your Honor, may we

8    approach?

9                     THE COURT:     Do you have an objection?

10                    MR. THWEATT:     I do, Your Honor,

11   relevance.

12                    THE COURT:     Come on up.

13                    (Bench discussion.)

14                    THE COURT:     All right.

15                    MR. THWEATT:     Your Honor, you signed a

16   limine order expressly telling counsel not to address

17   this issue with regard to an investigation.

18                    THE COURT:     Which in limine was this?

19                    MR. THWEATT:     It was my last -- either

20   23 or 24.

21                    THE COURT:     Mr. Plummer?

22                    MR. PLUMMER:     If that limine applies to

23   what I did, I withdraw my question.

24                    THE COURT:     All right.     The question is

25   withdrawn.




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1                       MR. PLUMMER:     Thank you, Your Honor.

2                       (Open court.)

3                       THE COURT:     The question is withdrawn.

4        Q.     (By Mr. Thweatt)        I believe you said,

5    Mr. Kern, earlier that there were three things that

6    you felt that were safety issues that weren't

7    addressed; is that right?

8        A.     I can't recall how many, but --

9        Q.     Well, as I recall them, you said that there

10   was inadequate new employee orientation?

11       A.     Correct.

12       Q.     And that it was understaffed?

13       A.     Correct.

14       Q.     And there was a locked door without a key?

15       A.     Correct.

16       Q.     Okay.     I want to talk to you about the

17   staffing issue.       You earlier said that staffing is --

18   part of the standard of care for staffing is that,

19   that there is a team meeting where they make a

20   decision about what's appropriate staffing.          Is that

21   correct?

22       A.     Among other things.        But, yes, that should

23   be something that's done.

24       Q.     The staffing standards are written down in

25   the HCS rules, right, the Administrative -- the Texas




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1    Administrative Code provisions that apply to HCS

2    housing, right?

3        A.   I believe what's written down is that

4    staffing ratios need to be appropriate based on the

5    individual's needs.

6        Q.   Okay.    So if there is a team meeting that's

7    put together and it's determined that two people are

8    appropriate for a particular house, that's a judgment

9    call that group makes; is that correct?

10       A.   That's correct.

11       Q.   Okay.    And if there is a team meeting that

12   staffs the occupants of a particular house and they a

13   make a decision, the team makes a decision, that it's

14   appropriate to have one person staffing that house,

15   that's a judgment call also; is that correct?

16       A.   Yes, it is.

17       Q.   Okay.    So it may vary depending on the

18   circumstances the people involved and that sort of

19   thing; is that correct?

20       A.   I suppose it would, yes.

21       Q.   Okay.    So your judgment that there should

22   have been double staffing is just your judgment and

23   not necessarily in the judgment of the team that

24   staffed this particular house, correct?

25       A.   It's based on what I saw in the reports and




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1    what I have seen in my 11 years of experience for

2    people of similar disabilities and behaviors.

3        Q.     By the way, the staffing is the team that

4    makes -- does the staffing is composed of what kind

5    of people?

6        A.     Usually, the service coordinator or the case

7    manager, the nurse, the -- it may or may not include

8    the direct care staff.       It can -- it would include

9    the guardian if they have one.       It can really -- it

10   really depends on who the guardian or the individual

11   person wants at their team.       It can be anybody.

12       Q.     Okay.    But it's not a decision that's made

13   by one person.      It's made by a group of people?

14       A.     Yes.

15       Q.     And that's something that is recorded in the

16   files of the constituents and the consumers at that

17   home and in the records of the company; is that

18   correct?

19       A.     That's correct.

20                      But I would will also like to comment on

21   what I just said.       The team makes team decisions all

22   the time in regards to care; however, it is

23   management's duty to make sure that they are not

24   allowing the team to make decisions that they know, as

25   the leader of that organization, cannot safely do.




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1    They may know information that some of the members of

2    that team would not know.

3        Q.     Okay.    But if the team is -- if the team has

4    all the information available to management and makes

5    a decision, it's still a judgment call; is that

6    correct?

7        A.     Ultimately, yes.

8        Q.     Okay.    Now, you said that -- I just want to

9    run through and list a few things you talked about.

10                      You talked about fire extinguishers and

11   everybody ought to be trained on how to use them,

12   correct?

13       A.     Correct.

14       Q.     If somebody panics and decides not to even

15   approach the fire extinguisher, it wouldn't matter

16   whether or not they have been trained one way or the

17   other, would it?

18       A.     My personal opinion is, if you don't know

19   how to use something, that may create more panic than

20   if you know that you do and that it's available.

21       Q.     But if they panic and don't even attempt to

22   use an item, it doesn't matter whether or not they

23   have been trained a week, a day or an hour, does it?

24       A.     It wouldn't.

25       Q.     You said a sprinkler system, the standard




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1    there is that a sprinkler system should be in a

2    four-person group home if they can't evacuate within

3    a certain period of time.        Was that the standard?

4        A.    Correct.

5        Q.    And I think you said the standard was three

6    minutes or four minutes?

7        A.    Needs to be three minutes or less.

8        Q.    Three minutes or less.       Okay.

9                      Okay.   By the way, you did confirm,

10   when you reviewed the various papers you looked at,

11   that the alarm system went off, right?

12       A.    Yes.

13       Q.    Okay.     By the way, if a door is opened --

14   excuse me.    If a door is unlocked, regardless of the

15   attachments to it, if you don't even try to go to it,

16   it doesn't matter whether it has double key deadbolt

17   or not.   If it's unlocked, it's still a way to get

18   out, right?

19       A.    Well, the, the means of egress have to be

20   unobstructed.      So if the door is locked and no one

21   has a key to get it unlocked, it's an obstructed

22   means of egress and it's not available.

23       Q.    Okay.     But if it's unlocked?

24       A.    If it's unlocked it's a means of egress.

25       Q.    Okay.     Thank you.




                                                           001138
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1                    MR. PLUMMER:     Pass the witness.   Nothing

2    further of this witness.

3                    THE COURT:     Mr. Thweatt.

4                       REDIRECT EXAMINATION

5    BY MR. THWEATT:

6        Q.   Mr. Kern, in your position, you told us

7    earlier that you have supervised fire drills and

8    conducted other sorts of training.       Can you tell us

9    whether there is a purpose to that training, if any,

10   to reduce panic that a staff member might encounter

11   in the event of an emergency?

12       A.   Well, I just think knowledge is power.          If

13   somebody is comfortable with how to utilize anything,

14   from CPR to a fire extinguisher to a lift or anything

15   like that, that's going to make them more comfortable

16   in their job.

17       Q.   That's something you have seen in your

18   capacity as the Director of Residential Services

19   during the training that you have presided over; is

20   that right?

21       A.   That's correct.

22                   MR. THWEATT:     I don't have anything

23   further, Your Honor.

24                   THE COURT:     Mr. Sparks?

25                   MR. SPARKS:     No further questions.




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1                     THE COURT:     Mr. Plummer?

2                     MR. PLUMMER:     Just a few, Your Honor.

3                         RECROSS-EXAMINATION

4    BY MR. PLUMMER:

5        Q.   Mr. Kern, when was the last time you

6    conducted a fire training session or fire drill?

7        A.   Me specifically?        Probably about five years.

8        Q.   Okay.     And five years ago, what was your

9    position in the organization?

10       A.   I was Program Supervisor for Residential

11   Group Homes, and in that position, supervised the

12   direct care staff that was also providing service

13   coordination for the residents that were on my case

14   load.

15       Q.   Program Supervisor, is that like what you

16   would call a program director?

17       A.   It was probably closer to like a case

18   manager role.

19       Q.   Thank you, sir.

20                    MR. PLUMMER:     Nothing further of this

21   witness, Your Honor.

22                    MR. THWEATT:     Nothing further, Your

23   Honor.

24                    MR. SPARKS:     Nothing further, Your

25   Honor.




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1                     THE COURT:     Any reason this witness

2    can't be excused?

3                     MR. THWEATT:     No, Your Honor.

4                     MR. SPARKS:     Not from us, Your Honor.

5                     MR. PLUMMER:     No, Your Honor.

6                     THE COURT:     All right.   Thank you,

7    Mr. Kern, you are excused.        Have a good day.

8                     Call your next witness.

9                     MR. THWEATT:     Your Honor, we will call

10   Dr. Karen Gollaher by deposition.

11                    THE COURT:     You may proceed.

12                        DR. KAREN GOLLAHER,

13   called by deposition, having been duly sworn, testified

14   as follows:

15            PLAINTIFF'S DIRECT EXAMINATION OFFER

16   BY MR. THWEATT

17       Q.   Good morning.        Would you state your full

18   name.

19       A.   Karen Gollaher.

20       Q.   And I understand, Dr. Gollaher, is your

21   professional title; is that correct?

22       A.   That's correct.

23       Q.   All right.     And can you tell us, you are a

24   psychologist by training; is that right?

25       A.   That's correct.




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1        Q.    Are you currently employed and in practice

2    in psychology here in Houston, Texas?

3        A.    Yes.

4        Q.    I'd like, if you could, Dr. Gollaher, for

5    you to describe briefly your training and educational

6    background for us.

7        A.    Okay.    I obtained my doctorate in psychology

8    at Pepperdine University.      And the last year of your

9    doctorate is an internship.

10                     I completed my internship at Baylor

11   College of Medicine in clinical psychology with an

12   emphasis in forensics.

13                     I went on to complete two fellowships,

14   one at TIRR, the Institute for Rehabilitation &

15   Research, which involved the National Institute of

16   Mental Health Grant looking at brain injury.      And I

17   particularly focused on looking at the rehabilitation

18   aspect of that, as well as criminal behavior resulting

19   from that.   Do you need more?

20       Q.    Are you currently licensed in the State of

21   Texas to practice psychology?

22       A.    Yes, I have two license.

23       Q.    And what is -- what are those two licenses,

24   please?

25       A.    I'm licensed by the Texas Board of Examiners




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1    for Psychologists to be a psychologist, as well as

2    the counsel in sex offender treatments to be a

3    treater/provider and evaluator of sex offenders.

4        Q.      Do you recall how long you've held those

5    licenses?

6        A.      I believe May of '97 is when I obtained my

7    license as a psychologist.      And then I was

8    grandfathered in for the other license.      It used to

9    be a registration.

10       Q.      Are you currently in good standing with the

11   State of Texas?

12       A.      Yes, sir.

13       Q.      Doctor, I'm going to attach to your

14   deposition transcript, Exhibit No. 1, which as I

15   understand it is a current copy of your curriculum

16   vitae.

17       A.      Yes, sir.

18       Q.      After looking at Exhibit No. 1, is that, in

19   fact, a copy of your C.V.?

20       A.      Yes, sir.

21       Q.      All right.   Is there anything that's out of

22   date or inaccurate about it as far as you know?

23       A.      No, sir.

24       Q.      Okay.   We are here today to discuss your

25   work involving an individual named Esperanza Arzola.




                                                         001143
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1    Can you tell the ladies and gentlemen of this jury

2    how you became involved with Ms. Esperanza Arzola?

3        A.   I was court ordered to conduct a Competency

4    Evaluation on this client, Ms. Arzola, in, I believe,

5    March of 2009.

6        Q.   Which court ordered you to conduct that

7    Competency Evaluation?

8        A.   I believe it was 268th District Court in

9    Fort Bend County.

10       Q.   All right.     Can you explain to the members

11   of our jury what a Competency Evaluation entails?

12       A.   There's questions that's laid out by the

13   statutes for me to address.     In particular, I need to

14   address whether or not the defendant can consult with

15   their attorney in order to assist in their defense.

16   They understand the charges and potential

17   consequences against them.

18                    And so in that process, there's at least

19   one interview that's conducted with the defendant.

20   Sometimes more than one interview.

21                    There's a review of the Offense Report,

22   or reports, if there's more than one charge.

23                    There's a review of any other

24   documentation.     I do request psychiatric records from

25   the defense counsel and the prosecutor.     It's one of




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1    these rare instances in which I get to talk to

2    everybody.     So I do request that, any psychiatric

3    records I can get information to.

4                        If there's a family member, I also,

5    depending on the circumstances, may ask to speak with

6    them.

7                        If they're housed in the County Jail, I

8    will also look at their medical records in the

9    infirmary.     And sometimes I end up talking with some

10   of the sheriff's deputies in there who have seen the

11   defendant and have observed certain behaviors.

12       Q.      And the purpose of all your efforts, just to

13   sum up, is to determine whether or not the person

14   you're interviewing or evaluating is competent to

15   stand trial in a criminal setting; is that correct?

16       A.      That's correct.

17       Q.      I see.     So did you, in fact, interview

18   Esperanza Arzola?

19       A.      Yes, sir.

20       Q.      And do you have a copy of a report that you

21   prepared?

22       A.      Yes, sir.

23       Q.      And do you have that in front of you there?

24       A.      Yes, sir.

25       Q.      Okay.    And let's go ahead and mark that




                                                             001145
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1    report as Exhibit No. 2 to your deposition.

2                        I'll let you keep the original in front

3    of you.

4           A.   Okay.

5           Q.   I'll refer to the exhibit as we question

6    you.

7                        First of all, can you just tell us:     Is

8    this the standard report that you might prepare after

9    any Competency Evaluation that you conduct?

10          A.   Yes, sir.

11          Q.   Okay.    In looking at it, it appears at the

12   top that you've gone through some demographic

13   information on Ms. Arzola; is that right?

14          A.   That's correct.

15          Q.   And the date of your evaluations, it looks

16   like you conducted three of them; is that accurate?

17          A.   That's correct.

18          Q.   Okay.    And then you prepared your final

19   report May 31st, 2009, true?

20          A.   That's correct.     Well, that's when the final

21   report went out.

22          Q.   Okay.    And we don't need you to read the

23   report to us.        But can you just, generally, tell us

24   during that first evaluation on March that 27th,

25   2009, what occurred?




                                                             001146
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1        A.      At that point, her defense attorneys

2    indicated that I could not interview her alone.        So

3    they went with me for that initial interview.

4                       I did speak with her about her ability

5    to consent to just the evaluation itself which I'm

6    required to do.       I had some concerns about her

7    understanding of what I was doing.

8                       Since her attorneys were there, they did

9    go ahead and agree for her to be evaluated and

10   actually signed the form for me.

11                      I then went through the interview

12   process, trying to obtain as much history as I could.

13                      Do you want me to go into detail about

14   that?

15       Q.      Yes.   What did you learn about her history?

16       A.      It's hard for me recall which piece of

17   information I got at which interview.

18       Q.      I understand.

19       A.      At that point, we talked about her -- I

20   start with the basics:       Where was she born; what was

21   her family composite of; were her parents together

22   when she was born; did they stay together throughout

23   her childhood, just to get some basic family origin.

24                      We went through that information

25   question.     We went through -- I go through my standard




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1    questions.   Her education history, occupational,

2    psychiatric and so forth.

3                  Ms. Arzola had tremendous difficulty

4    answering most of those questions.     She was impulsive.

5    Would just spew out information spontaneously.      Her

6    stories were inconsistent.     Left a lot of gaps for me.

7    And when I would try to clarify, I did not have great

8    success in clarifying the history.

9        Q.   You mentioned at the outset of your

10   evaluation, you had some concerns about whether

11   Ms. Arzola understood what was happening.     And if you

12   can, can you point to specifics that led you to have

13   those concerns for the ladies and gentlemen of the

14   jury.

15       A.   I have a standard report or a Statement of

16   Disclosure form that I read.     And then if the

17   defendant can read, I give it to them to look at so

18   they can make sure that it matches what I've said.

19                 And as I was reading it to her, she

20   didn't understand all of the terms on there.

21   Indicated, you know, just that I was going to do some

22   interviews and I might do some testing and that this

23   would go to the court and then the attorneys.      She

24   didn't seem to follow all that.

25                 In fact, she seemed to keep asking




                                                         001148
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1    questions or talking about things that were not

2    consistent with that.        So I -- if I recall correctly,

3    I asked her to tell me some of that back and she could

4    not.

5           Q.   Okay.    Was it your understanding or did you

6    have an understanding at the time of the evaluation

7    whether Ms. Arzola was taking any medication?

8           A.   Yes, I believe she was on medication at that

9    first interview.

10          Q.   Do you know what medication that was?

11          A.   I can look at my report.     It may be in

12   there.

13          Q.   Okay.

14          A.   I don't recall.

15          Q.   Please do so.

16          A.   I don't see that in here.

17          Q.   It looks like maybe on Page 2 of the

18   evaluation, there's a paragraph that begins, "With

19   regards to psychiatric history, she reported taking

20   medication several times a day but could not report

21   the names of her medication."

22                       Beyond that information, do you know

23   whether or not Ms. Arzola was taking any medication at

24   the time you interviewed her?

25          A.   On 3/27, it was my understanding that she




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1    had been prescribed medication.       I did not get to see

2    her medical records at that time from the infirmary.

3    But I had been told that she was not always compliant

4    with the me.

5                    In the latter two interviews, she was

6    not taking medication.

7        Q.     I see.     And where did this interview take

8    place?

9        A.     The first interview took place in -- I

10   believe it's the psychiatrist's office of the initial

11   jail.    The jail eventually was two pieces.      And it

12   was just a one-room office with chairs and a desk.

13   And that's the one where the attorneys were present

14   for her, the dense attorneys.

15       Q.     And so the basic task that you are assigned

16   by Judge Elliott in this case was to determine

17   whether or not Ms. Arzola was mentally competent to

18   stand trial for those charges; is that right?

19       A.     Correct.

20       Q.     And I note that there are three dates of

21   evaluation.    Can you describe for the jury whether or

22   not that's the typical number that one might see in

23   your shoes?    Are there five of six evaluations?      Are

24   there usually just one?       How does it work?

25       A.     There's usually one; sometimes two.      Three




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1    is unusual for me.

2        Q.   And so your -- was it your final evaluation

3    on May the 21st, 2009?     Is that the one you're

4    referencing that was videotaped?

5        A.   The 15th of May was videotaped, which was

6    the second time.     She was deteriorating, so I went

7    back to see her one more time.     But she refused to

8    come to be videotaped on the 21st.

9                     And because of the agreement that I

10   could only see her in this videotaped room, I didn't

11   get to see her on the 21st.

12       Q.   I see.     As a psychologist, how many

13   Competency Evaluations do you think you have

14   performed over the course of your career?

15       A.   100 to 150.

16       Q.   And those would all be in the context of a

17   person who's charged with a crime; is that right?

18       A.   Yes, sir.

19       Q.   And then you'd render an opinion about that

20   person's competency?

21       A.   Yes, sir.

22       Q.   And provide that opinion to the criminal

23   court?

24       A.   That's correct.

25       Q.   Okay.     Can you describe, generally, what you




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1    learned about Ms. Arzola's mental history?

2        A.      It appears from what information I had that

3    it stemmed back to early childhood.      In terms of her

4    intelligence level, which was quite low.      It's in the

5    retardation range.

6                     Don't have a good number to give you

7    because I had only one document that was provided from

8    her past psychiatric history.      I think I had a number

9    of 40 at one point that was given to me.

10       Q.      By 40, what do you mean?   An IQ of 40?

11       A.      An IQ of 40.

12       Q.      And what would be the typical adult IQ?

13       A.      The average IQ across the U.S. population

14   would be 100, with what we call a standard deviation

15   of 10.    So we'd expect a large percentage of the

16   population to be between 90 and 110 IQ.

17       Q.      And the document or the history that you

18   learned about with regard to Ms. Arzola reflected an

19   IQ of 40?

20       A.      Of 40.   I believe I was told that by the

21   defense attorneys.     I don't believe I saw that on

22   record.     Again, I saw only one document of her past

23   history that was provided.

24       Q.      And you mentioned that an IQ level of 40

25   would be in retardation?      Is that the word you used?




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1          A.   It would be in the mental retardation range.

2    It's actually in the moderate level which is about

3    30, 35 to 50 or 55.       There's some flexibility they

4    give you in those numbers.

5          Q.   Have you ever conducted inquiry into

6    someone's IQ level?

7          A.   Yes.

8          Q.   How many times have you done that?

9          A.   Thousands.

10         Q.   Do you feel like you are qualified to render

11   an opinion on someone's IQ level based upon your

12   knowledge, training, experience and education?

13         A.   Yes, sir.

14         Q.   Okay.    Because of that, if someone has a

15   moderate level of mental retardation, are you able to

16   describe that in lay terms for the jury in terms of

17   what that means if they might observe that person?

18         A.   I can still answer.     Okay.

19                      So someone in the moderate level is not

20   someone who's going to be living independently.          You

21   know, there's a wide range of what we call adaptive

22   functioning, when we look at an adaptive IQ, in terms

23   of what types of activities of daily living can they

24   do.

25                      Can they put on their shoes and tie




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1    them?    Can they, you know, dress themselves?    Can they

2    cook for themselves?    Hold a job.    These are all some

3    basic daily living skills that most of us do all the

4    time.

5                    For someone with retardation, mild on

6    down, they are going to have deficits in that.       But if

7    we take two people of an IQ of 40, there might be

8    discrepancies between what they can do.

9                    So even though they have the same number

10   on the IQ test, their functioning may be very

11   different.    But, again, we would not expect this

12   person to be able to live on their own.      They will

13   need assistance for the rest of their life.

14       Q.     What else did you learn about Ms. Arzola's

15   mental history in your evaluation of her?

16       A.     As I understand it -- again, you have to

17   understand where my history is coming from, the one

18   document, the attorneys and her.      So it's limited,

19   and I apologize.

20                   As I understand it, beginning by age 9,

21   there was various issues going on.      At some point, CPS

22   had stepped in and taken her out of the home because

23   of sexual abuse by her mother and/or parents.      It may

24   have been both.    And then she's placed into group

25   homes.




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1                     She has a variety of behavior issues

2    beginning at an early age as I understand it.

3    Difficulties with impulse control; difficulties with

4    aggression.

5                     At some point, she's diagnosed with

6    schizophrenia.     There's even bipolar thrown out, I

7    believe, at certain points.     And I know there is an

8    overlap with those diagnoses so that is not unusual.

9    And that she received psychiatric care.     She was

10   placed into various facilities, as I understand it.

11   Residential facilities.

12                    It's not clear to me whether that was

13   because of behavior or because of psychiatric or

14   because she needed foster needs where she needed to

15   reside or all of the above.     It's not clear to me.

16   Again, given my sparse information.

17                    But that there was psychiatric

18   hospitalizations or was the need for medication.        And,

19   again, she could not live on her own.

20       Q.   Did she tell you anything with regard to her

21   history of illegal drug use?

22       A.   Yes, she did.

23       Q.   And can you describe for us what she said?

24       A.   She spontaneously blurted out when we

25   started on that topic, the use of crack.     She said




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1    shared needles, shared drugs.      I think marijuana, as

2    well.    She referred to weed that she used that was

3    pretty extensive, according to her.      But, again, I

4    don't have a lot of detail to that because she's not

5    a great source of historical information.

6        Q.     Looking at your report on Page 2, there's a

7    reference to prostitution.      Do you recall what she

8    told you about that?

9        A.     Yes.

10       Q.     Can you tell us, please?

11       A.     She reported -- she didn't use the word

12   prostitution.     But she reported basically that she

13   would have sex for favors or for money.

14                     She described it again in the way that

15   she described everything.      She just kind of

16   spontaneously blurts it out and then moves on.       And

17   when I try to do follow-up questions, I can't get a

18   lot of detail.

19       Q.     Have you previously diagnosed persons with

20   bipolar disorder?

21       A.     Yes, sir.

22       Q.     Have you previously diagnosed persons with

23   schizophrenia?

24       A.     Yes, sir.

25       Q.     Was there anything about your evaluations




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1    and observations of Esperanza Arzola which led you to

2    think that she was not bipolar?

3        A.     No.     I was not sure which one was the

4    predominant diagnosis, but certainly she displayed

5    some of the bipolar behavior, the manic behavior,

6    some of the depressive behavior, as well as some of

7    the psychotic behavior, which again, they often

8    overlapped.

9        Q.     I think I understand your testimony there.

10   Let me see if I can capture it, and you tell me if

11   I've got it wrong.

12       A.     Okay.

13       Q.     In your evaluation of Esperanza Arzola, you

14   determined that she was both bipolar and

15   schizophrenic; is that correct?

16       A.     Well, I based it on a lot of it was her

17   history.    That was just when I'm talking to her.

18       Q.     Okay.    But you were not able to determine

19   which was more predominant?

20       A.     That's correct.

21       Q.     Okay.    There is a diagnosis section of your

22   report on Page 3, Dr. Gollaher.

23       A.     Yes, sir.

24       Q.     And you've got Axes 1 through 5, it looks

25   like.    Would you describe what that -- what those




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1    are?

2           A.   There's a diagnostic and statistic manual

3    that's been created by the American Psychiatric

4    Association that gives us the five Axes in order to

5    help capture what's going on for a person who has all

6    kind of issues, psychiatric, learning disabilities

7    and so forth.

8                     Axis I is the major psychiatric

9    disorders.     This is where you see your psychosis such

10   as schizophrenia, bipolar disorder.     Your major

11   depressive disorder.

12                    Axis II is for mental retardation, as

13   well as personality disorders.     If someone has a

14   full-blown personality disorder, it will go in

15   Axis II.

16                    Axis III is used to list any medical

17   conditions someone may have, because again, that

18   affects their status or what they need for treatment.

19                    Axis IV would be psychosocial stressors.

20   So what's going on that's stressful for them.

21                    And then Axis V is what's GAF or the

22   global assessment of functioning, which is really a

23   subjective way of kind of assessing someone's overall

24   functioning in social, psychological, emotional

25   behavioral areas.




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1                        It ranges from 0 to 100, although,

2    really 0 -- nobody has 100.        So it's, again, very

3    subjective.     But you're trying to rate how severe

4    someone is.

5                        Someone who's higher functioning,

6    meaning they're living on their own, they have job

7    skills, they have relationships that are meaningful,

8    they have an average IQ -- a low average IQ or above,

9    they're going to be higher on that range.        Someone who

10   has mental retardation is going to be lower on that

11   range, because they're not as good in social job

12   skills and so forth.

13          Q.   So 100 global assessment functioning score,

14   GAF, that would be the highest functioning person

15   that you could assess; is that right?

16          A.   Correct.     Although I don't know if I've ever

17   seen anyone give anyone 100, so...

18          Q.   And conversely, 0 would be the lowest; and

19   you don't know if anybody's ever been assessed at 0?

20          A.   Probably someone who's deceased would be

21   a 0.

22          Q.   Okay.

23          A.   Yeah, it's just people get down to 20 and

24   15, but I've never seen a 0.

25          Q.   All right.     And did you make a determination




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1    with regard to the GAF score assigned to Esperanza

2    Arzola?

3        A.    Yes, sir.

4        Q.    And what was that?

5        A.    30.

6        Q.    And that represents what?

7        A.    Serious impairment.

8        Q.    You noted in the preceding paragraph above

9    diagnosis that Ms. Arzola has an extensive history of

10   acting out behaviors such as hitting, attempting to

11   stab others and property destruction.

12                   And the next sentence goes on to say,

13   "It is also noted that her behavior problems are

14   characterized as severe, and her aggression was noted

15   to possibly 'result in injuries to others and injuries

16   to Esperanza from retaliatory aggression.'"

17       A.    Correct.

18       Q.    Where did you discern that history of

19   behaviors?

20       A.    This is from one document I did get that was

21   provided by her attorneys about her psychiatric

22   status.   I believe it was a treatment plan.

23   Individual Service Plan that had come from where she

24   was residing at that time.

25       Q.    And looking at Exhibit No. 3 to your




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1    deposition, it looks like the third page of that

2    document is entitled Four J's Community Living

3    Centers, Inc., Home and Community-based Services

4    Program.    And there's another title there, Annual

5    Individual Service Plan; is that right?

6        A.     Yes, sir.

7        Q.     All right.   So you looked at this document,

8    the Four J's document, is what I'll call it for

9    short, to recite on Page 3 of your report; is that

10   correct?

11       A.     That's correct.

12       Q.     You, it looks like, summarized some tests or

13   quizzes that you may have given to Ms. Arzola to

14   assist you in your Competency Evaluation; is that

15   fair?

16       A.     Sure.

17       Q.     Okay.

18       A.     Yes.

19       Q.     How would you call it?

20       A.     Just some mental status information I might

21   give to anybody, including somebody like this.

22       Q.     There is a recitation that she could not

23   correctly state the alphabet.

24       A.     Yes.

25       Q.     Is that correct?




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1        A.   That's correct.

2        Q.   You noted that she reported hearing auditory

3    hallucinations for the first time since being

4    incarcerated.    Can you tell us what that means?

5        A.   She heard voices.    And, in particular, she

6    heard voices telling her to hurt herself, so we call

7    those command hallucinations.    They're telling her to

8    do something versus just some people will hear

9    background sounds that aren't understandable.       But

10   she heard directions, according to her.

11       Q.   And then she further described making

12   attempts to kill herself in the past, as you've noted

13   here, cutting her wrist with a comb?

14       A.   Yes.

15       Q.   And with glass?

16       A.   Yes.

17       Q.   All right.    And then under areas of

18   competency can you tell us what those areas are and

19   what your findings were, please?

20       A.   The first area is to rationally understand

21   the charges and potential consequences of the

22   proceedings that are pending.

23                   In the first interview, she had

24   indicated when I asked her why she was in jail, she

25   indicated that she had murdered her home.




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1                    She then indicated she tried to kill her

2    roommate and used a cigarette -- it says a letter.       It

3    should be lighter.    She said she also tried to kill

4    other people because they are not nice to her.

5                    When asked if someone had died as a

6    result of her actions, she denied this.

7                    In the second interview, she again

8    admitted to setting a fire in her room.    This time she

9    talked about being angry at one of the staff members

10   at the group home.    She did not seem to understand if

11   someone had died at the fire.

12                   We talked about, well, what would it

13   mean if she was found guilty of these charges against

14   her; and she was very confused about that.    The whole

15   concept of guilty; the whole concept of what might

16   happen.

17                   The second section that I looked at is

18   her ability to disclose to her attorney any facts, any

19   information, her mental state at the time.    You know,

20   she would, again, spontaneously give me information.

21   Very talkative, but she could not give me a sequential

22   story.    You know, we all like stories that have a

23   beginning, middle and an end; and that makes it easy

24   for us to follow.    And she could not do that.   That's

25   why I think at some point, I describe it as piecemeal.




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1    I get snapshots of this story, but I don't get a

2    continuous story from her.

3        Q.   All right.    And let me, if I could, briefly

4    interrupt you and ask you to go back and explain

5    something.

6        A.   Sure.

7        Q.   Under the first topic that you described.

8        A.   Okay.

9        Q.   There's a paragraph there on Page 4 of your

10   report that states, "Ms. Arzola did not seem to truly

11   understand the gravity of her action."     And then

12   you've listed some examples.

13       A.   Yes.

14       Q.   I think you told us earlier that your task

15   in this case was to determine her competency for the

16   trial.

17       A.   That's correct.

18       Q.   And is part of that discerning whether she

19   can understand the gravity of what she's done?

20       A.   Correct.     She has to understand only what

21   she has been accused of.

22       Q.   Okay.

23       A.   But what can happen if she's found guilty.

24   Does she go to prison?     Does she have probation?     You

25   know, what does that mean?




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1        Q.    All right.    There's a third area that you've

2    listed.

3        A.    Yes.

4        Q.    Could you describe that area of competency

5    and what your findings were, Doctor?

6        A.    This is a capacity to engage in a reasoned

7    choice of legal strategies and options.     And in this

8    area, I do ask her about the various players in the

9    courtroom.   The judge, what's the judge do?     What's

10   her defense attorney do?     What does the district

11   attorney or prosecutor do?     What's a jury?   Get a

12   sense of what is going on in the courtroom.

13                    As well as her ability to understanded

14   the four available pleas and participate in a plea

15   bargaining process should that arise.

16                    She indicated her attorney's job was to

17   try to get her out of jail.     The job of the judge was

18   to try to represent her.     When asked what this meant,

19   she indicated she thought she was going to get a legal

20   guardian, meaning the judge would appoint her one.

21                    She then stated she had to be her own

22   attorney, which she had two defense attorneys; so that

23   was not accurate.

24                    The job of the prosecutor or assistant

25   district attorney -- she indicate she did not know who




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1    this person was.

2                        She did not understand the plea

3    bargaining process.        And when i went over available

4    pleas, she didn't really seem to understand them.           I

5    tried -- if someone doesn't understand them,

6    especially the no contest, not guilty by reason of

7    insanity, I will review those.

8                        They often have watched some TV show

9    that has those two options, or at least the not guilty

10   by reason of insanity and then come back to see what

11   they have retained from that.        I didn't seem to be

12   able to teach her the basics of that.

13                       The fourth section is understanding the

14   adversarial nature.

15       Q.      Let me stop you there, Doctor, quickly.

16       A.      Yes.

17       Q.      Do you have an understanding as to what

18   Ms. Arzola's attorneys -- whether she entered a plea

19   in this case?

20       A.      I don't recall.     She may have.

21       Q.      Okay.

22       A.      But I don't recall.

23       Q.      Would that be reflected in your notes

24   anywhere?

25       A.      It might be.




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1        Q.   All right.

2        A.   I don't always get told that.     I mean, I may

3    ask them because usually people will start with not

4    guilty; but I don't always get told that information.

5        Q.   All right.     I think I interrupted you.

6        A.   Okay.

7        Q.   You were about to describe understanding the

8    adversarial nature of the proceedings?

9        A.   Yes.

10       Q.   Okay.    That's Page 5 of your report.

11       A.   Sometimes with someone who seems obviously

12   to have a lower cognitive functioning, I may ask

13   them, have you ever been in front of the judge.

14   Trying to understand what their experience has been

15   in the courtroom.     So that's where I start with her

16   versus, you know, coming to the adversarial portion

17   right away.

18                    And she indicated she'd gone in front of

19   the judge.    She had been crying.   He had almost

20   released her she said because she had been crying.

21   Don't know if that was true or not.     I doubt it,

22   but...

23                    Asked her if her attorney was present

24   when this occurred, she stated no.     So she provides

25   this, again, piecemeal picture of her being in front




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1    of the judge.    Again, didn't understand who the

2    assistant district attorney was, so trying to go to

3    the adversarial was incredibly limited.

4                    The fifth section is how she would

5    behave in court.    Could she act appropriately.     And I

6    talked with them about how -- how do you act in the

7    courtroom again.    I may simplify it for someone's

8    who's obviously got lower cognitive functioning.

9                    And given what I observed in the

10   interview process, I can often try to extrapolate that

11   to how they would be in the courtroom.

12                   She had difficulty sitting still.     She

13   moved a lot.    She had difficulty following.   If she

14   didn't understand something, she might, you know,

15   interrupt right where I'm at.     It was very, again,

16   disjointed process with her.

17                   And I assume that's how it would be in

18   the courtroom, because in a courtroom, there would be

19   even more people, more noise, more distracters versus

20   just her and me in the tapings.     Well, her attorneys

21   were at the first two.

22                   The capacity to testify is the last

23   section that the statute talks about that I need to

24   review.

25       Q.    And what were your findings from that?




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1           A.      The question is whether or not she could

2    testify in court.           And I put down, I do not believe

3    she could.        She can't follow the content or the train

4    of thought of what's going on in the courtroom.

5                          She doesn't understand some of the

6    terminology.          She has a tendency to just blurt things

7    out.        So those rules about, you know, your attorney

8    speaks for you and all of that would be something she

9    would not be able to follow is what I determined.

10          Q.      All right.    Next in your report you've

11   listed psychiatric issues and medication.

12          A.      Yes.

13          Q.      Do you recall where you obtained that

14   information from?

15          A.      I think what I did is because I didn't have

16   a medical chart, as I recall, because wasn't in there

17   with her, I think what we did is called the nurses in

18   the infirmary.         And with the Court Order, they were

19   able to tell me what medications she was taking or at

20   least some basics.

21          Q.      Now, I know you're not a psychiatrist.

22          A.      That's correct.

23          Q.      And just for the jury's purposes, a

24   psychiatrist may prescribe medication; is that right?

25          A.      That's correct.




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1        Q.   A psychologist, though, is nonetheless

2    familiar with the types of medication that can be

3    used to treat mental illness?

4        A.   Correct.

5        Q.   Okay.     Are you familiar with the medications

6    that are listed here?

7        A.   Yes.

8        Q.   And can you tell us what Trazodone is?

9        A.   I can still answer?        Okay.

10                    Well, several of these medications,

11   including Trazodone, they are used to treat mood

12   disorder and the psychotic features.

13                    It can also be used to help with

14   aggression.

15       Q.   What was the first?

16       A.   The mood disorder.

17       Q.   Mood disorder.     Okay.     Sorry.

18       A.   So we have things like Trazodone and

19   Depakote and all that that can be used to help when

20   someone has difficulty managing their behavior.

21   Perhaps is aggressive or impulsive.

22                    Wellbutrin being a medication to help

23   with the mood stability.

24                    I can't recall.     And then Cogentin and

25   Risperdal are very common medications for people who




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1    have the psychotic features of the schizophrenia,

2    bipolar disorders.

3        Q.   You've evaluated the impact of medication on

4    Ms. Arzola's appearance, demeanor or ability to

5    participate in the proceedings.    And what were your

6    findings there?

7        A.   Either we have to put forth an answer to

8    that question whether that would assist.    And

9    certainly, I think medication would be necessary, you

10   know, for her to participate in the interviews.       And

11   they'll be essential to improve her functioning.

12                  I don't know if that will be enough,

13   however, for her to be able to go to court.       Meaning I

14   don't know if that will help her restore her to

15   competency.    I don't believe it will.

16       Q.   All right.    The report concludes with your

17   overall findings, and could you summarize those for

18   us, please?

19       A.   I discuss certainly that she, at the point

20   where, especially the last interview, she had did

21   decompensated as we discussed and would not even come

22   out of her cell.

23                  So certainly she's not at the point when

24   I saw her that she could go to court and assist in her

25   own defense.    She decompensated pretty quickly.     It




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1    was a few weeks.     And so there was a lot of concern

2    about her being on medication.

3                     However, she was still confused earlier

4    when more compliant with medication.        Still had

5    difficulty understanding the terms.        And overall

6    deemed her to not be competent to stand trial.

7                     MR. TERRY:   Your Honor, may we approach?

8                     THE COURT:   Yes.

9                     (Bench discussion.)

10                    MR. TERRY:   We are at the point where we

11   decided yesterday we would stipulate where we talked

12   about the court to pay for the services.        So you

13   wanted us to stop so we could, I guess, explain it to

14   the jury.

15                    THE COURT:   All right.    Have y'all

16   agreed on a stipulation?

17                    MR. TERRY:   I thought we had yesterday.

18                    MR. RAVAL:   We did.   We may just have

19   to -- at the beginning of the deposition, there is one

20   sentence about the 268th District Court --

21                    THE COURT:   Y'all should have done this

22   a day ago.     Skip over that.   Write out your

23   stipulation.     Mr. Thweatt can write out a stipulation

24   and pass it to y'all, make sure it's fine.        When you

25   are done with this testimony, you can also read the




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1    stipulation to the jury.      All right.

2                     MR. TERRY:   Sorry, Judge.

3                     (Open court.)

4                     MR. TERRY:   Page 85, line 14.

5        Q.   If you will look at Exhibit No. 3 to your

6    deposition.

7        A.   Okay.

8        Q.   I'll ask you to turn to the portion that's

9    marked Page 1 of 15 of that document.

10       A.   Okay.

11       Q.   Just so that the jury is clear, you received

12   this document here before you rendered your

13   competency opinion; is that right?

14       A.   That's correct.

15       Q.   Okay.     And at the top of the page that we're

16   referencing here, it says Behavior Therapy Program

17   Introduction Implementation Date.      Can you read the

18   date that appears after that?

19       A.   August 4th, 2008.

20       Q.   You understand that the fire that took place

21   that resulted in Ms. Arzola's criminal charges took

22   place on September the 4th, 2008?

23       A.   It's September the 4th or September the 2nd.

24       Q.   Yes.

25       A.   Somewhere in that point.




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1        Q.     It's September the 4th?

2        A.     September the 4th, okay.

3        Q.     Yeah.

4        A.     Thank you.

5        Q.     And so this implementation date of August

6    the 4th, 2008, would have been approximately one

7    month prior to the fire made the basis of this

8    lawsuit.

9                       You understand that.

10       A.     Yes, sir.

11       Q.     Okay.     And in this document that we see in

12   Deposition Exhibit No. 3, there is a listing of the

13   drugs that Ms. Arzola was taking or that she should

14   have been taking according to this implementation

15   date of August the 4th, 2008.       Do you see that.

16       A.     Yes, sir.

17       Q.     My question is simply whether the drugs that

18   are reflected in Exhibit No. 3 to your deposition are

19   the same ones that you referenced on Page 2 of your

20   report in the last paragraph there.       Page 2.

21       A.     Page 2?

22       Q.     Yes.

23       A.     Oh, I'm sorry.     And where at on that page?

24       Q.     In the last paragraph, the sentence

25   beginning "Multiple medications."




                                                            001174
                                                             301



1        A.   Yes, I see that.

2        Q.   Your report says, "Multiple medications were

3    listed in her records, including, Cogentin, Lamictal,

4    Depakote and Trazodone."    Is that what that says?

5        A.   Correct.

6        Q.   And all of those drugs are listed in

7    Deposition Exhibit No. 3, the portion that reflects

8    what Esperanza is receiving?

9        A.   Correct.

10       Q.   Okay.

11       A.   Same names.

12       Q.   Can you see that on Page, it looks like, 13

13   of 15, that document there is signed by Kirk

14   Lockwood, Ph.D., clinical psychologist?

15       A.   Yes, sir.

16       Q.   His signature in that case would tend to

17   reflect to you that he is the one who prepared the

18   preceding pages beginning with Page 1 through where

19   his signature appears?

20       A.   Yes, sir.

21       Q.   All right.    So that I understand it, the

22   sources of information that you had at the time that

23   you prepared your report, one of them was, of course,

24   Ms. Esperanza Arzola; is that right?

25       A.   Yes, sir.




                                                       001175
                                                              302



1        Q.   One of them was her defense attorneys?

2        A.   Yes, sir.

3        Q.   And the third one and final one was the

4    Four J's report that we see as Deposition Exhibit

5    No. 3?

6        A.   There was a couple other things.

7        Q.   Okay.    Tell us what those are.

8        A.   The records from the infirmary that they

9    provided me.

10       Q.   So that's No. 4.

11       A.   And what was provided from the court in

12   terms of the orders and Grand Jury Indictment.

13       Q.   No. 5.

14       A.   And there was Offense Report, as well.

15       Q.   Okay.    And you actually -- it looks like on

16   Page 3 of your report, in the second sentence of that

17   paragraph, it says, "A Four J's Community Living

18   Center, Inc. Annual Individualized Service Plan,

19   dated July 25th, 2007, noted that Ms. Arzola is her

20   own guardian."

21       A.   Yes.

22       Q.   Do you see that?

23       A.   Yes.

24       Q.   All right.    And so that we understand it

25   perfectly, Deposition Exhibit No. 3 is a copy of that




                                                        001176
                                                                 303



1    report that you were looking at and referenced in

2    your Competency Evaluation?

3        A.   Yes, sir.

4        Q.   Okay.     And that also includes the findings

5    that Dr. Kirk Lockwood, the clinical psychologist,

6    has apparently rendered in this case?

7        A.   Did he have findings?

8        Q.   Well, his report --

9        A.   Yes, sir.     It's his report.

10       Q.   Okay.     I ask that because your competency

11   report doesn't reference Dr. Kirk Lockwood.       But

12   these are, in fact, part of the records that you

13   handed us today?

14       A.   Yes, sir.

15       Q.   Are you aware of any clinical psychologists

16   who has disagreed with your opinion regarding

17   Esperanza Arzola's incompetency to stand trial as of

18   the date of your report?

19       A.   No, I am not.

20                    MR. TERRY:   No further questions, Your

21   Honor.

22                    THE COURT:   Do y'all have any

23   cross-designations of this witness?

24                    MR. RAVAL:   We do not, Your Honor.

25                    THE COURT:   All right.   You may step




                                                             001177
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1    down.

2                  MR. TERRY:     Your Honor, at this time, we

3    would like to move to admit Exhibits 54, 56 and 57,

4    which were exhibits to her deposition.

5                  THE COURT:     Any objection?

6                  MR. RAVAL:     No objection, Your Honor.

7                  THE COURT:     Plaintiff's Exhibits 54, 56

8    and 57 are admitted.

9                  (Plaintiff's Exhibits 54, 56 and 57 are

10                 received in evidence.)

11                 THE COURT:     Call your next witness,

12   please.

13                 MR. THWEATT:     Your Honor, we don't have

14   any further witnesses.

15                 We have a few exhibits -- or I believe

16   Mr. Sparks has an exhibit he is planning on offering

17   now.

18                 MR. SPARKS:     That is correct, Judge.

19                 THE COURT:     All right.

20                 MR. SPARKS:     At this time, we want to

21   offer Exhibit Number 3 and Exhibit Number 4.

22                 THE COURT:     4 is already in evidence.

23                 MR. SPARKS:     Sorry, Judge.

24                 Then Exhibit Number 3.

25                 THE COURT:     Any others?




                                                        001178
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1                  MR. SPARKS:    No, Your Honor.

2                  THE COURT:    Any objection to

3    Intervenor's Exhibit 3?

4                  MR. RAVAL:    Yes, Your Honor, as to

5    hearsay.

6                  THE COURT:    Come on up.

7                  (Bench discussion.)

8                  THE COURT:    All right.    Do you have a

9    copy of it?

10                 (Referenced document tendered to the

11                 Court.)

12                 MR. SPARKS:    This is the report that was

13   part of the Rick Overholt deposition testimony

14   regarding the inspection that was done on October 5th

15   of 2008, if I'm not mistaken, that indicated that,

16   that the son had gone out and indicated that the back

17   door had been locked and there was no accessible key.

18                 THE COURT:    Is this the one we had the

19   dispute over yesterday with the deposition?

20                 MR. SPARKS:    Yes, Your Honor.

21                 THE COURT:    Did you lay foundation for

22   its admissibility?

23                 MR. SPARKS:    My understanding is, Judge,

24   that the -- once we read the information into the

25   record regarding the deposition, once you allowed




                                                          001179
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1    their reading in, that it covered the foundational

2    issues.

3                   THE COURT:    I allowed the testimony for

4    the limited purpose for notice.

5                   MR. SPARKS:     That's what that document

6    is.

7                   THE COURT:    You are offering this just

8    for notice?

9                   MR. SPARKS:     Yes.

10                  THE COURT:    All right.     Any response?

11                  MR. RAVAL:    Your Honor, our concern is

12   that the handwriting of Mr. Overholt's son will be

13   used by the jury for more than just notice.        It's

14   hearsay.   Whether or not this document fits in a

15   business records exception, which we don't believe it

16   does, here's an additional level of hearsay as to the

17   handwriting.   It's a second level of hearsay.

18                  THE COURT:    All right.     I will allow it

19   for the limited purpose of notice, and I will instruct

20   the jury accordingly.

21                  All right.    Have a seat.

22                  (Open court.)

23                  THE COURT:    All right.     Intervenor's

24   Exhibit 3 is admitted.

25                  (Intervenor's Exhibit 3 is received in




                                                           001180
                                                                     307



1                    evidence as stated below.)

2                    THE COURT:     Ladies and gentlemen, you

3    are only to consider Intervenor's Exhibit 3 as

4    evidence or lack of evidence of notice to any of the

5    Defendants.    You are not to consider this for any

6    other purpose other than that it might or might not

7    have given them notice.

8                    Anything else?

9                    MR. THWEATT:     Plaintiff rests, Your

10   Honor.

11                   MR. SPARKS:     So does Intervenor, Your

12   Honor.

13                   THE COURT:     All right.   We're going to

14   go ahead and break for the day.       This is a good

15   stopping point.    So we will start up again tomorrow

16   morning at 8:30 sharp.       Y'all are doing great.      Keep

17   it up.    Thank you.

18                   (Jury excused from the courtroom.)

19                   THE COURT:     Thank you.   You may be

20   seated.

21                   Okay.   Here's your totals.     Plaintiff

22   and Intervenors have used 5 hours, 25 minutes.

23   Defendants have used 1 hour, 53 minutes.        So we're

24   staying on schedule.     Good work.

25                   Any motions from defense?




                                                              001181
                                                                   308



1                   MR. PLUMMER:     Yes, Your Honor.

2                   THE COURT:     You may proceed.

3                   MR. PLUMMER:     Can we stand before the

4    bench?

5                   THE COURT:     Just do it from there.

6                   MR. PLUMMER:     Okay.

7                   THE COURT:     That way she knows who is

8    talking.

9                   MR. PLUMMER:     The Defendants would move

10   for a directed verdict on the issue of limitations

11   against the Intervenor Derrick James, including Taylor

12   as guardian for Derrick James.      And the basis for the

13   limitations claim is twofold.

14                  First, the loss occurred on August 4 --

15   excuse me, September 4, 2008.      Two-year statute of

16   limitations on a claim of that sort would run

17   September 5, 2010, I think.      The Intervenor filed a

18   plea in intervention on September 3, 2010.         That was

19   two days before the running of the statute of

20   limitations.

21                  The reason the statute of limitations

22   applies in this particular case against the Intervenor

23   is that the intervention was filed on the party -- the

24   named party in the intervention was Derrick Leon

25   James, an individual who resides in Houston, Harris




                                                            001182
                                                                 309



1    County, Texas.     There was -- Derrick James, I think

2    all the evidence shows, is not competent and has not

3    been competent for years and certainly wasn't

4    competent in 2010.     The intervention does not seek to

5    assert a claim on behalf of Derrick James as next

6    friend, as a guardian or in any other capacity for

7    this individual.     So in that sense, he had no capacity

8    to retain counsel, no capacity to litigate, by statute

9    and by rule.     That's the first grounds.

10                    It was -- arguably, it was an attempt to

11   cure it with the first amended intervention.     And the

12   argument has been made that there is a relation back

13   doctrine that relates back to the original filing.

14   That is correct, had the original intervention been

15   filed by Ms. Taylor as guardian for Derrick James.

16   You can argue that the relation back doctrine would

17   have applied under that circumstance.

18                    However, Ms. Taylor was not a litigant

19   and not a party in any capacity in September of 2010

20   when the intervention was was filed.     So the statute

21   of limitations ran before Ms. Taylor became a party.

22   That's the first grounds for the application of the

23   limitations.

24                    The second ground for the application of

25   limitations is Chapter 74.     Chapter 74 has a hard




                                                        001183
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1    two-year statute of limitations.     And I say hard

2    two-year statute of limitations because disabilities

3    of capacity do not extend the statute of limitations

4    under Chapter 74 beyond two years, absolute two years.

5    So the statute of limitations ran on September 5,

6    2010, before there was any curative effort.

7                     I supplied the Court with three

8    Chapter 74 Supreme Court opinions on Monday, I

9    believe.    And one of those, I think, addresses that

10   issue because in one of those there was an intent to

11   cure the failure to timely file an expert report by a

12   subsequent appointment of guardian.     The guardian had

13   filed suit -- a suit had been filed within the

14   statute.    The guardian had not been appointed at that

15   point in time.     The appointment occurs, and the

16   guardian argued that the Chapter 74 120-day expert

17   report timing should count from the date of her

18   appointment rather than from the date the suit was

19   filed.     And the court held that does not apply under

20   Chapter 74.

21                    Similarly, the statute of limitations is

22   a hard two years, and they failed to meet that in this

23   case.

24                    So for those reasons, we would ask for

25   directed verdict against against Intervenor.




                                                           001184
                                                                  311



1                  THE COURT:     Which provision of

2    Chapter 74 are you referring to, which section?

3                  MR. PLUMMER:     Judge, I don't have it --

4    well, I don't have it in front of me, Judge.      But I

5    can pull it up in one second.

6                  Just one second, Your Honor.

7                  Judge, I can supply that to the Court

8    within a short period of time.

9                  Judge, I believe it's Section 10.01.

10   And that may have been under the old statute.      Let me

11   see, under the current statute, if that is the same

12   provision.

13                 It's Section 74.251, Statute of

14   Limitations on Healthcare Claims.

15                 THE COURT:     Can you show me in your

16   first amended answer to the plea in intervention where

17   you pled the application of this statute of

18   limitations or any statute of limitations?

19                 MR. PLUMMER:     In our original answer,

20   Judge, we asserted limitations, number one.

21                 THE COURT:     Right.   But you amended, and

22   you asked me for leave to amend.      So the operative

23   pleading is the first amended answer to plea to

24   intervention, isn't it?

25                 MR. PLUMMER:     Yes, Your Honor.




                                                         001185
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1                   It's in, it's in -- I think it's in the

2    fifth defense, Your Honor, where we allege they failed

3    to comply with all the prerequisites of Chapter 74.

4                   THE COURT:     Well, I see you pleading

5    74.301, 74.302 and 74.303.      But where did you plead

6    the affirmative defense of 74.251?

7                   MR. PLUMMER:     It's incorporated in the

8    fifth defense, Your Honor.

9                   THE COURT:     Mr. Sparks, your response?

10                  MR. SPARKS:     Judge, a couple things.

11   One, my understanding regarding the issue we talked

12   about yesterday that it went, if anything, not to

13   Anthonia Uduma but to Four J's in reference to the

14   issue of Section 74.

15                  We also respond in terms of the tolling

16   statute.   We think it's quite applicable in this

17   matter because, although Derrick James may not have

18   had capacity, he certainly had standing.      Once we were

19   able to get Ms. Wylette Taylor appointed his guardian,

20   who at the time was not an heir and could not have

21   brought a suit on his behalf, we cured the issue

22   regarding the -- the capacity issue which now she has

23   a right to represent him in the matter of which she is

24   an heir of Tanya James.

25                  THE COURT:     You just referred to a




                                                            001186
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1    statute by its title.     What did you call it, the what?

2                    MR. SPARKS:     I call it the tolling

3    statute.

4                    THE COURT:     Okay.   Thank you.   What

5    provision is that?

6                    MR. SPARKS:     I believe it's 16.01 if I'm

7    not mistaken.    16.62.

8                    THE COURT:     Sixteen point?

9                    MR. SPARKS:     16.062.

10                   THE COURT:     Thank you.

11                   MR. SPARKS:     Additionally, we think he

12   didn't list that particular cause of action or defense

13   that he is talking about in his last amended pleadings

14   before the Court.

15                   THE COURT:     Mr. Plummer, why isn't the

16   statute suspended for 12 months after Ms. James's

17   death?

18                   MR. PLUMMER:     I don't believe the -- I

19   don't believe Chapter 74 allows that, Judge.

20                   THE COURT:     Well, you have also pled the

21   normal Chapter 16 limitations argument, right?

22                   MR. PLUMMER:     You mean with regard to

23   Ms. Uduma?   It may be.      I'm not familiar with the

24   tolling statute.     I will need to look at the tolling

25   statute.




                                                             001187
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1                    THE COURT:   The motions are denied.

2                    MR. RAVAL:   Your Honor, we have one

3    additional motion, Your Honor.

4                    THE COURT:   Okay.

5                    MR. RAVAL:   Your Honor, the additional

6    motion regards the premises liability claim brought by

7    both Intervenor and Plaintiff against Ms. Uduma

8    individually.    Specifically, regarding the Texas

9    Supreme Court Timberwalk case and the line of cases

10   that followed that, including the Del Lago Partners

11   case of 2010, the plaintiff and intervenor need to

12   demonstrate a couple things with regard to a premises

13   liability claim in which they are making a claim that

14   criminal actions of a third party entitle them to

15   relief.   Those grounds are specifically that the

16   landowner failed to provide adequate security, or in

17   this case safety.    They had to have been aware of the

18   criminal activity that was occurring or that type of

19   activity that was occurring.

20                   In this case, they would need to prove

21   that there was some kind of activity sufficiently

22   similar to starting a fire, or having Ms. Arzola with

23   a previous history of starting fires, sufficient to

24   put Ms. Uduma individually as a landowner on notice

25   and to provide additional safety and security for the




                                                          001188
                                                                 315



1    tenants at Beretta Court.

2                    THE COURT:   Is this motion just a

3    negligent activity premises liability or are you

4    saying it also applies to defective condition premises

5    liability?

6                    MR. RAVAL:   Well, it certainly applies

7    to the negligent activity.

8                    As to the defective condition, I would

9    assume that a similar argument applies as to notice,

10   if she is not put on notice as to that type of

11   condition.    And, really, there was no condition being

12   alleged as such.    It's the activity --

13                   THE COURT:   A locked back door and no

14   sprinklers is not a defective condition?     At least,

15   that is what they are alleging, isn't it?

16                   MR. RAVAL:   That is what they are

17   alleging.    But with regards to the activity, the --

18   allowing a resident access to a lighter or having a

19   resident bring in a lighter and start the fire.      With

20   regard to that particular activity, there are some

21   specific requirements about what kind of notice of

22   criminal activity of other sorts or other types and

23   how near it needs to be to that particular residence

24   for the landowner to be on notice of that activity.

25   Otherwise, there is no duty.




                                                          001189
                                                                   316



1                       THE COURT:   What are those requirements

2    that you say they --

3                       MR. RAVAL:   Those four requirements are

4    proximity, recency, frequency, similarity and

5    publicity.     Those five factors must be taken into

6    consideration and provided for, for the landowner to

7    have adequate notice and have the foreseeability to

8    provide for adequate protection and security against

9    the alleged criminal activity or dangerous condition.

10                      THE COURT:   Y'all's response?

11                      MR. TERRY:   Your Honor, as far as the

12   four factors that counsel just mentioned, proximity,

13   frequency -- I missed the last two.        I think they can

14   all be summed up in basically the testimony we just

15   heard from the psychologist.        And that is, the acts

16   that Ms. Arzola undertook while she was at the

17   Four J's Community Living Center and her history of,

18   you know, of trying to escape, of beating on other --

19   or endanger -- making others feel in danger.        I mean,

20   she had a history of problems that was well-known to

21   Four J's.

22                      Now, did she ever try to light anything

23   on fire?     No.    I don't think there is anything in the

24   record that goes to that.        But as far as what she was

25   capable of doing and her criminal background, I think




                                                           001190
                                                                  317



1    that we more than meet the burden of putting Four J's

2    on notice of what she was capable of doing.

3                  THE COURT:   The motion is denied.

4                  Anything else?

5                  MR. RAVAL:   No, Your Honor.

6                  THE COURT:   All right.   Mr. Plummer, who

7    are you going to call tomorrow?

8                  MR. RAVAL:   Your Honor, we will be

9    calling Inya Ogbonna of Four J's Community Living.      We

10   will also be calling Ngozi Obichuku of Four J's.     And

11   I believe we will be calling Ms. Uduma.

12                 THE COURT:   All right.   I should have a

13   draft charge for y'all possibly at the beginning of

14   proceedings tomorrow; if not, sometime tomorrow

15   morning, so y'all will have a chance to look it over.

16   I would encourage you, especially if I get it to you

17   before lunch, that whoever is going to be arguing the

18   charges take some time over the lunch hour to look

19   over it.

20                 We will have to see how proceedings go,

21   whether we will have a chance to talk about it

22   informally or whether we will have to just do a formal

23   charge conference at the close of the evidence.     So I

24   don't anticipate having a charge conference before

25   tomorrow afternoon.   But there's -- depending on how




                                                         001191
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1    things go, there is a chance that, if we have got

2    enough time to allow y'all to review and absorb it and

3    then argue it, we might argue the charge at the end of

4    the day if all the evidence is completed.         If not, we

5    will do it on Thursday.      So be on the lookout for

6    that.

7                   Is there anything else we need to take

8    up today?

9                   MR. THWEATT:     Not from the Plaintiff,

10   Your Honor.

11                  MR. SPARKS:     Nothing from the

12   Intervenors, Your Honor.

13                  MR. PLUMMER:     Nothing from the

14   Defendants, Your Honor.

15                  THE COURT:     All right.   Y'all are

16   excused.

17                  Mr. Plummer, I think I barked at you a

18   little bit too harshly earlier today.         I apologize.     I

19   just have a pet peeve of lawyers who keep walking

20   about the courtroom and sometimes crowding witnesses

21   or jurors.    I don't think I gave you fair warning

22   about that, so I apologize about that.

23                  MR. PLUMMER:     No problem.     And, Judge, I

24   would apologize to the Court.      Unfortunately, I am

25   still old school.    And back in the old day, that was




                                                            001192
                                                               319



1    part of our technique.     So I understand, Your Honor.

2                  THE COURT:     All right.

3                  (Conclusion of proceedings for the

4                  day.)

5

6                          * * * * * * * *

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                                        001193
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1    THE STATE OF TEXAS

2    COUNTY   OF   HARRIS

3

4                  I, Kathleen Keese, Official Court
     Reporter in and for the 269th District Court of Harris
5    County, State of Texas, do hereby certify that the
     above and foregoing contains a true and correct
6    transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the
7    parties to be included in this volume of the Reporter's
     Record, in the above-styled and numbered cause, all of
8    which occurred in open court or in chambers and were
     reported by me.
9
                   I further certify that this Reporter's
10   Record of the proceedings truly and correctly reflects
     the exhibits, if any, admitted by the respective
11   parties.

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

14   __________________________________________________.

15
                   WITNESS MY OFFICIAL HAND this the
16   13th day of December, 2011.

17

18
                          /s/ Kathleen Keese
19                   ______________________________

20                   KATHLEEN KEESE
                     TEXAS CSR NO. 758
21                   Expiration: 12/31/12
                     Official Court Reporter
22                   269th District Court
                     201 Caroline, 13th Floor
23                   Houston, Texas 77002

24

25




                                                       001194
                                                                   1



1                          VOLUME 4 OF ____
                          REPORTER'S RECORD
2                        CAUSE NO. 2009-40925

3

4    PATTI WAGNER, AS GUARDIAN     *   IN THE DISTRICT COURT OF
     OF JENNY ANN WAGNER, AN       *
5    INCAPACITATED ADULT           *
         Plaintiff                 *
6                                  *
     VS.                           *   HARRIS COUNTY, T E X A S
7                                  *
     FOUR J'S COMMUNITY LIVING     *
8    CENTER, INC., ANTHONIA        *
     UDUMA AND GODFREY UDUMA       *
9        Defendants                *   269TH   JUDICIAL DISTRICT

10

11

12                            JURY TRIAL

13                         OCTOBER 19, 2011

14

15                    On the 19th day of October, 2011, the

16   following proceedings came on to be heard in the

17   above-entitled and numbered cause before the Honorable

18   Dan Hinde, Judge Presiding, held in Houston, Harris

19   County, Texas.

20                    Proceedings reported by stenographic

21   machine shorthand.

22

23

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




                                                          001195
                                                    2



1    A P P E A R A N C E S:

2
     Mr. L. Lee Thweatt
3    SBN: 24008160
     Mr. Joseph D. Terry
4    SBN: 24013618
     TERRY & THWEATT, P.C.
5    One Greenway Plaza, Suite 100
     Houston, Texas 77046-0102
6    713.600.4710

7    COUNSEL FOR PLAINTIFF

8

9
     Mr. James C. Plummer
10   SBN: 16075700
     Mr. Amar Raval
11   SBN: 24046682
     PLUMMER & KUYKENDALL
12   4203 Montrose Blvd., Suite 270
     Houston, Texas 77006
13   713.522.2887

14   COUNSEL FOR DEFENDANT

15

16
     Mr. Shelton Sparks
17   SBN: 06507160
     SHELTON SPARKS & ASSOCIATES, L.L.C.
18   706 Cordell Street
     Houston, Texas 77009
19   713.862.5533

20   Ms. Tiffany C. Harvey
     SBN: 24067343
21   THE LAW OFFICE OF TIFFANY HARVEY
     706 Cordell Street
22   Houston, Texas 77009
     832.498.7076
23
     COUNSEL FOR INTERVENOR
24

25




                                           001196
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1                          I N D E X
                            VOLUME 4
2                       OCTOBER 19, 2011

3

4                                                           Page

5    PROCEEDINGS .................................             5

6    DEFENDANTS' WITNESSES:

7                             Direct    Cross   Voir Dire    Vol

8    NGOZI OBICHUKU                 7     25                   4
                                          45                   4
9                                  67     73                   4
                                          74
10
     INYA OGBONNA                  77     91                   4
11                                        95                   4
                                   98     99                   4
12                                       103                   4

13   ANTHONIA UDUMA             106      155                   4
                                         169                   4
14                              178      190                   4

15

16   PLAINTIFF REBUTTAL WITNESS:

17   PATTI WAGNER               193                            4

18   Defendants' rest ............................           192

19   Plaintiff & Intervenor rest .................           196

20   Defendants' Motion for trial amendment ......           199
     Ruling ......................................           201
21
     Objections to the Charge of the Court
22   By the Plaintiff ............................           203
     By the Intervenor ...........................           212
23   By the Defendants ...........................           214

24

25   Court Reporter's Certification ..............           222




                                                        001197
                                                                      4



1                    PLAINTIFF'S EXHIBIT INDEX

2

3    NO.   DESCRIPTION                  ID   OFFER   ADMIT    VOL

4     52   CV of Eddie Corral           Withdrawn Page 219      4

5

6                         * * * * * * * *

7

8                    DEFENDANT'S EXHIBIT INDEX

9

10   NO.   DESCRIPTION                  ID   OFFER   ADMIT    VOL

11     9   HHSC Annual Fire         183       183     189       4
           Safety review of Beretta           188
12         Court Home 12/05/2007

13    19   Amuche Udemezue              10                      4
           training records for
14         Jenny Wagner 05/13/2008

15    23   Minutes for In-Service    15                         4
           Training on 06/06/2008
16         regarding Emergency
           Evacuation and Fire Drill
17
      59   Jenny Wagner HCS         26                          4
18         Progress Note 09/06/2008

19    71   Drawing of the layout         5      5       5       4
           of the house
20

21                        * * * * * * * *

22

23                  INTERVENOR'S EXHIBIT INDEX

24

25                              None.




                                                             001198
                                                                        5



1                       P R O C E E D I N G S

2                    THE COURT:     All right.   I understand

3    there is an issue you want to discuss.

4                    MR. RAVAL:     Your Honor, we want to admit

5    Exhibit 1.   This was the exhibit we reviewed

6    yesterday -- Exhibit 71.       It's a new exhibit.

7                    THE COURT:     Is there any objection?

8                    MR. THWEATT:     Yes, Your Honor.     I

9    believe that was a demonstrative.

10                   That's what you are offering

11   (indicating)?

12                   MR. RAVAL:     Yes.

13                   MR. THWEATT:     We object as to relevance.

14   It wasn't offered, as well, during the witness'

15   testimony.   I think it would be confusing and

16   misleading to the jury.

17                   THE COURT:     All right.   This is the

18   drawing of the layout of the house?

19                   MR. RAVAL:     Correct, Your Honor.

20                   THE COURT:     The objection is overruled.

21   71 is admitted.

22                   (Defendant's Exhibit 71 is received in

23                   evidence.)

24                   THE COURT:     Is there anything else you

25   need to take up with me?




                                                               001199
                                                                       6



1                     MR. RAVAL:     That's it, Your Honor.

2                     MR. SPARKS:     There is just one thing.

3    Last night we left some of our material in the

4    attorney ready room, and it's locked.

5                     THE COURT:     All right.   We will get it

6    unlocked for you.

7                     Apparently we are still waiting on a

8    couple jurors.

9                     (Break.)

10                    BAILIFF:     All rise.

11                    (The jury present, proceedings resumed

12                    in open court as follows.)

13                    THE COURT:     Thank you.   Please be

14   seated.

15                    Mr. Plummer, call your first witness.

16                    MR. RAVAL:     Your Honor, defense calls

17   Ngozi Obichuku.

18                    BAILIFF:     If you will stand here, raise

19   your right hand, he will swear you in.

20                    (Witness placed under oath.)

21                    THE COURT:     Have a seat, please.

22                    You may proceed.

23                    MR. RAVAL:     Thank you, Your Honor.

24

25




                                                              001200
                                                                      7



1                             NGOZI OBICHUKU,

2    having been placed under oath, testified as follows:

3                           DIRECT EXAMINATION

4    BY RAVAL:

5        Q.      Please introduce yourself to the jury.

6        A.      Hi.    Good morning.   My name is Ngozi

7    Obichuku.

8        Q.      Can you spell that for us, please?

9        A.      First name, N-G-O-Z-I.     Last name is

10   O-B-I-C-H-U-K-U.

11       Q.      Ms. Obichuku, what do you do for a living?

12       A.      I'm a care coordinator at Four J's.

13       Q.      What does a care coordinator do?

14       A.      I monitor services for clients that have

15   mental retardation.       I in-service staff on my

16   clients' special needs and diagnosis and everything

17   you need to know for the client.

18       Q.      Were you a care coordinator at Four J's in

19   2008?

20       A.      Yes.

21       Q.      What clients were you responsible for at

22   that time?

23       A.      I was responsible for -- I'm sorry.       Can

24   you --

25       Q.      Which clients did you have at Four J's in




                                                             001201
                                                                 8



1    2008?

2        A.   I had several clients?     You mean the Beretta

3    Court Home?

4        Q.   At Beretta Court.

5        A.   Okay.     I had Jenny Wagner as my client and

6    Elisha Campbell as well.

7        Q.   What was your job responsibility with regard

8    to Jenny Wagner?

9        A.   In 2008, I was a case manager.     And that's

10   something like a care coordinator.     I'm an advocate

11   for the client.     I'm also -- my job duties were to

12   in-service the staff like I do now, and also to

13   render services make sure services are being

14   monitored and making sure they are being rendered.

15       Q.   At the Beretta Court Home in 2008, what

16   staff did you work with, whether by in-service or

17   dealing with them regarding Ms. Wagner's treatment?

18       A.   I worked with, like, three or four different

19   staff in that home.

20       Q.   Do you remember who they were?

21       A.   I remember Amuche was one.     I don't remember

22   the other three that were there at that time.

23       Q.   When you say Amuche, are you referring to

24   Amuche Udemezue?

25       A.   Yes.




                                                        001202
                                                                   9



1        Q.   What kind of client was Jenny?

2        A.   Jenny was a great client.    She was actually

3    my favorite client.    I had known her since 2004.

4    Jenny was a client that was jovial; but if you don't

5    know her, you will look at her and think that she is

6    somebody that is quiet.    But, I mean, she would do

7    something, you know, that was very fascinating.      She

8    would listen to a song once and then she will sing

9    all the song on the radio.    She had a way of making

10   people laugh.    She really blessed my life and a lot

11   of people's as well.

12       Q.   How would you communicate with Jenny?

13       A.   Jenny is not the type of client that if you

14   communicate with her -- at least with me and most

15   people on the staff, like, you know, if you are

16   talking to her, you know, questioning, I would

17   communicate with her like a joke.    If I tell Jenny,

18   hey, Jenny you want a cookie?    I would say things to

19   make her laugh, and then Jenny would normally answer

20   back with a laugh and a joke at the same time.

21       Q.   A minute or two ago, you were talking about

22   doing in-service for some of the people that worked

23   at Beretta Court; is that correct?

24       A.   Correct.

25       Q.   Okay.   I'm going to want to ask you a couple




                                                          001203
                                                                  10



1    questions about that now.

2                       Let me show you Defense Exhibit 19 and

3    ask you if you recognize that.

4        A.     Yes.

5        Q.     What is this exhibit?

6        A.     The in-service I gave for Jenny Wagner.

7        Q.     Okay.    Can you tell the jury what exactly is

8    in-service?       What does in-service mean at Four J's?

9        A.     In-service can be on different things.     But

10   here, in particular, was our annual in-service that

11   we did for each client.

12                      What I did for Jenny was her -- we have

13   staffings for, like, her services that she received

14   for that year.      Her IPC plan -- well, her service plan

15   is usually in May, and I in-serviced the staff on that

16   plan that I wrote along where the IBT team.       The team

17   came together and put a plan for Jenny, and I

18   in-serviced the staff on that plan as well as her diet

19   information, diagnosis, level of functioning as well

20   as the evacuation plan, assessment of residential

21   monitoring, like if she had a bowel movement or

22   something like that, how often you should monitor her,

23   and behaviors as well.

24       Q.     Ms. Obichuku, you have been referring to a

25   team.    What team are you referring to with regard to




                                                          001204
                                                                   11



1    Jenny and her treatment?

2        A.     That is the Interdisciplinary Team.    For

3    Jenny's services, it doesn't consist of only myself,

4    but it consists of the guardian, which would be her

5    mother, and it would also consist of the nurse and

6    also specialized services.    For some clients, if they

7    have a psychologist the psychologist would be there.

8    For some clients, if they have other services, like

9    maybe OT or so, it depends on who was a part of their

10   team.    For Jenny, it was just the nurse, myself and

11   her mom.    And also consisted of the residential

12   supervisors at times.

13       Q.     Who attended the in-service training on

14   May 13, 2008?

15       A.     I can't read that first handwriting.     And

16   Anthonia Fobia, something like that.    And Amuche.       I

17   don't know how to pronounce her last name.

18       Q.     Amuche Udemezue?

19       A.     Yes.

20       Q.     Is that her signature, by the way?

21       A.     Yes.

22       Q.     Do you recognize that?

23       A.     Yes.

24       Q.     Have you seen it before?

25       A.     Well, that -- it says her name, so that's




                                                          001205
                                                                12



1    what -- yeah.

2        Q.     The name above that, is that Ms. Uduma or is

3    that a different Anthonia?

4        A.     No, it's a different Anthonia.

5        Q.     So are you saying you led this in-service

6    training for everyone regarding Jenny?

7        A.     Correct.

8        Q.     We have a list of about nine different

9    handouts that were given out.     Are these handouts

10   that you gave out to the people who attended this

11   meeting?

12       A.     I'm sorry?   Say that again.

13       Q.     We have a list of handouts on this page

14   here, nine different categories of documents.

15       A.     Yes.

16       Q.     Do you see that?

17       A.     Yes.

18       Q.     Are those handouts you gave to everyone who

19   attended the meeting?

20       A.     Yes.   We all went over that.

21       Q.     One of the handouts was about Jenny's

22   Individual Service Plan; is that right?

23       A.     All of them are not necessarily handouts.

24   Some of them have the same information on it.       Like

25   for special needs, they have the diagnosis, level of




                                                          001206
                                                                  13



1    functioning and all that.       The emergency evacuation

2    plan was a plan on its own.

3        Q.      Do all these documents fit into the client

4    binder?

5        A.      Yes.   And they are all sectioned off in

6    dividers.

7        Q.      And all this goes into one binder for the

8    client at Four J's?

9        A.      Yes, and it stays with them.     We have one

10   that stays at the home, and the other stays at the

11   office.

12       Q.      Do you keep a binder yourself?

13       A.      Yes.

14       Q.      Is that the one that stays at the office?

15       A.      Correct.

16       Q.      If we look at number 5, it talks about an

17   emergency evacuation plan.

18       A.      Uh-huh.

19       Q.      Did you go over what the emergency

20   evacuation plan should be with regard to Jenny at

21   Beretta Court?

22       A.      Yes.

23       Q.      What was that instruction you gave everyone?

24       A.      The emergency evacuation plan consists of

25   emergencies.       Like, for instance, if there is a fire,




                                                            001207
                                                                  14



1    if there is a hurricane, if there is a tornado,

2    natural disasters, what the staff is to do for each

3    client.     We don't make it the same for all of our

4    clients.     We make it individualized based on the

5    client.     If a client is in a wheelchair, if they have

6    behavior incidents, seizure disorder, how the staff

7    is to know what to do in each circumstance.       So we

8    usually go over with the staff, step by step, the

9    emergency plan.     And then also allow them to ask

10   questions if they need.

11       Q.      What was the staff at Beretta Court supposed

12   to do for Jenny in the event of a fire.

13       A.      It depends.   If there is heavy smoke, the

14   staff are -- if she is out of bed -- or if she is in

15   her wheelchair, if it is in the daytime or so, or if

16   it is in the evening and she is in her wheelchair,

17   the staff it is to wheel her out of the door.       But if

18   it's heavy smoke present and she is on her bed, the

19   staff is to lower her from her bed with her draw

20   sheet and lower her by picking her up from the

21   shoulders and taking her to safety as soon as

22   possible.

23       Q.      Did you discuss that -- or was that

24   discussed at a different meeting aside from this

25   in-service training you gave in May?




                                                           001208
                                                                   15



1        A.     Yes.    That was the in-service I gave her.

2    And then we also did it, I think, at our monthly --

3    probably like a month or so later, at our monthly

4    meeting.    We usually do that every month with the

5    staff.

6                      MR. RAVAL:     Your Honor, may I approach

7    the witness?

8                      THE COURT:     Yes.

9                      (Referenced document tendered to the

10                     witness.)

11       Q.     (By Mr. Raval)      Ms. Obichuku, I'm showing

12   you Defense Exhibit 23, and I would ask if you

13   recognize that.

14       A.     Yes.

15       Q.     What's reflected in Defense Exhibit 23?

16       A.     The minutes of staff in-service training

17   held on June 6, 2008.         That is that was one of our

18   monthly meetings.      We usually meet, like, the 7th,

19   6th, 8th, the first week of the month, for all of the

20   staff.     We bring them in for training.

21       Q.     Did you attend this meeting in June 2008.

22       A.     Yes.

23       Q.     Did anyone who worked at Beretta Court

24   attend this meeting?

25       A.     I have to check and see.       Usually everybody




                                                            001209
                                                                  16



1    is supposed to be there for the meetings, so.       I see

2    Anthonia's name.

3        Q.    What page are you look looking at?

4        A.    It says page 2, on the first set of the

5    in-service.

6        Q.    And if you could tell us which signature,

7    which name you are looking at?

8        A.    Anthonia, it's like --

9        Q.    Is that near the bottom of the page?

10       A.    Correct.

11                    And then, let's see.

12                    Okay.   There is Amuche as well.   Amuche

13   Udemezue, it's the same person, on the last page,

14   second.

15       Q.    It says Muchie Udemezue?

16       A.    Uh-huh.

17       Q.    Is that referring to Amuche Udemezue?

18       A.    Right.     That's the shorter name for Amuche.

19       Q.    Do you remember her attending this meeting?

20       A.    Yes.

21       Q.    Let me go back.     What was discussed about

22   the fire evacuation plan at Beretta Court at this

23   meeting in June?

24       A.    Well, there was actual -- let me see.      I

25   remember where we actually did a demonstration.




                                                         001210
                                                                17



1    Actually, Ms. Anthonia was the one that was doing the

2    demonstration.    Ms. Anthonia Uduma, the program

3    director, she was doing a demonstration of how to

4    evacuate a client.     She put a body on the table, and

5    then she allowed the staff to practice on her and

6    showed them how to drag a client in case of a fire,

7    what to do in case of a tornado, look for the --

8    pulling somebody out of the windows.     And then we had

9    each of the staff practice.

10       Q.   Ms. Obichuku, let me back up just a second.

11                    Of the clients at Beretta Court, how

12   many of them were able, as far as you know, to get out

13   of the home by themselves?

14       A.   All of them were able to -- I'm sorry, not

15   all of them.     Elisha was able to get out on her own,

16   Esperanza as well.     Tanya needed verbal prompts to

17   get her out of the home.     Jenny was the only one that

18   really needed physical assistance to get out of the

19   home.

20       Q.   What kind of assistance did Jenny need in

21   the event of a fire?

22       A.   She needed staff to, you know, take her up

23   out of her bed and escort her out as soon as possible

24   to the nearest exit.

25       Q.   Was that instruction reviewed in this




                                                         001211
                                                                    18



1    meeting in June of 2008?

2          A.     Yeah.   I remember that.    Jenny was one of

3    the examples that they used, Jenny and another client

4    of ours named Rigo that they used, as if they were in

5    a situation with fire.         There were two clients that

6    were in wheelchairs.         Who would be the first client

7    to evacuation first, and how would you evacuation

8    them.      And staff came up and some staff, they came

9    and said you will let the client in the wheelchair

10   go.     And she let them demonstrate to show how they

11   would safely evacuation the client.

12         Q.     There is a note here on -- just below where

13   it says "911" where it says, "She then called Amuche

14   to explain how."       Do you see that sentence?

15         A.     No, I don't.

16         Q.     It's in kind of the second half of that long

17   paragraph.

18         A.     On the first page?

19         Q.     On the first page.

20         A.     I'm sorry.     Which paragraph?

21         Q.     Let's look right here?     Do you see that on

22   the screen in front of you?         Do you see where it

23   says, "She then called"?

24         A.     Okay.   Yes.

25         Q.     Do you remember Ms. Amuche giving some kind




                                                               001212
                                                                    19



1    of demonstration about how she was to evacuate Jenny?

2        A.      I don't remember exactly, but I remember

3    that she was there in the meeting and she was

4    probably one of those that they, you know,

5    escorted -- because she called upon almost all of the

6    staff, and they all did the examples.

7        Q.      And just to be clear, was Jenny one of those

8    examples discussed at this meeting?

9        A.      Yes.

10       Q.      You understand that there was a fire that

11   took place at Beretta Court just a few months after

12   this?

13       A.      Correct.

14       Q.      Is it your understanding that these

15   procedures that were discussed in June were not

16   followed at that fire?

17       A.      Yes.

18       Q.      How do you know that?

19       A.      Well, because the -- I think the day or so

20   after the fire -- I don't know if it was the day

21   after or two days after -- Amuche came to the office

22   and she, you know -- I admit I was angry at her and

23   asked her what happened.         All of our staff asked what

24   happened.     And she just said I'm sorry --

25                      MR. SPARKS:   Objection.   Calls for




                                                               001213
                                                                    20



1    hearsay.

2                       THE COURT:     Sustained.

3        Q.      (By Mr. Raval)       Is it your understanding

4    that Ms. Udemezue followed the training she was given

5    in June, at the time of the fire?

6        A.      I'm sorry.    Can you repeat the question?

7                       MR. THWEATT:     Objection, leading.

8                       THE COURT:     Sustained.

9        Q.      (By Mr. Raval)       Do you know if Ms. Udemezue

10   followed her training she was given in June, during

11   the fire?

12       A.      She did not follow her training.

13       Q.      What kind of employee was Ms. Udemezue, as

14   far as you know?

15       A.      She was a good employee.       She actually

16   attended all of the staff meetings, you know.

17       Q.      How often were the staff meetings?

18       A.      Once a month.       But whenever we would

19   in-service for, like, if a staffing took place, we

20   would also have an additional meeting, as well, with

21   the staff.

22       Q.      Did you keep in touch with Jenny after the

23   fire took place?

24       A.      Yes.

25       Q.      How did that happen?




                                                               001214
                                                                   21



1        A.      Well, after the fire took place -- sorry,

2    okay.    Sorry.    I'm getting emotional because Jenny

3    was very dear to my heart.      But after the fire took

4    place -- (Pause).      After -- sorry.

5                      Thank you.

6                      (Crying.)

7                      After -- sorry.    After the fire took

8    place, Jenny stayed in the hospital for about a month.

9    And then I still continued visiting her during that

10   time.    Monitoring her service, making sure that she

11   was fine.     And she moved -- after she got discharged

12   from the hospital, she moved to stay with her mother.

13   And I continued being her case manager, monitoring her

14   service, seeing her, like, maybe three times a week,

15   four times a week sometimes.        But she moved in with

16   her mother.

17       Q.      What kind of services did you provide for

18   Jenny at her mother's house after she moved back

19   there?

20       A.      I remained her case manager.     I made sure,

21   like, she needed -- she got all the things she

22   needed, followed up with all the doctors' orders.

23   The nurse also came.      We came to see her.    The nurse

24   came to do her assessments and treat her.        And I also

25   continued to make sure that, you know, Jenny was




                                                           001215
                                                              22



1    receiving her services, everything was okay, helped

2    her get a hospital bed and made sure she was getting

3    everything that she needed.

4        Q.   You said that you got a hospital bed for

5    Jenny.   Did she have a hospital bed back at Beretta

6    Court?

7        A.   No.    She didn't.

8        Q.   Did she use the hospital bed when she was at

9    her mother's place?

10       A.   Yes.

11       Q.   Where did she sleep at night?

12       A.   At first, because when she came back, we had

13   to get a hospital order through the doctor.     So the

14   mother would sleep on the couch, and Jenny would

15   sleep in the mother's bed in her bedroom.

16       Q.   What about after, when she got the hospital

17   bed at the apartment there, did she sleep in the

18   hospital bed or did she sleep in her mother's bed or

19   somewhere else?

20       A.   Slept in the hospital bed, and the mother

21   slept back in her bed.

22       Q.   Did you get a chance to observe Jenny's

23   behavior in those days and months when she was

24   staying at her mother's apartment afterwards?

25       A.   Yes.




                                                        001216
                                                                23



1           Q.   How would you describe her behavior?

2           A.   At first, I was worried maybe she was not

3    going to be like herself; but after I would go back

4    constantly and make, you know, do jokes with her,

5    then she would do jokes back with me like before.

6           Q.   Did she appear to you to be quieter?

7           A.   Because Jenny, before the fire, she would

8    speak, like, maybe, out of seven days she would

9    say -- she will have three days of talking, where she

10   will just talk all day and make jokes and laugh and

11   say things out loud.      So when I, you know, when I

12   used to -- when I would see her before, I would see

13   her, like, maybe three or four times a week when I

14   would see her at the day-hab.      So, then after the

15   fire -- you know, before, I didn't know if she would

16   speak, but then she started speaking again like she

17   did.

18          Q.   How long were you Jenny's care coordinator

19   after the fire?

20          A.   Case manager after the fire?

21          Q.   Yes, ma'am.   Sorry.

22          A.   I don't know the exact time.   I know it was

23   several months maybe.      I don't know the exact -- I

24   can't remember how long I stayed as the case manager,

25   but until she stayed with our company.




                                                         001217
                                                                     24



1        Q.      What was Jenny's behavior like just before

2    you left and stopped being her case manager?

3        A.      The same as before.      It was similar to what

4    I remember.

5        Q.      Would you say she was the same old Jenny?

6        A.      Well, to my understanding, the way she

7    communicated back with me.         She had days where she

8    was silent, and then she would make jokes and laugh.

9        Q.      Ms. Obichuku, you have described for us at

10   least one or two times where there was training

11   involving Ms. Udemezue.         Do you remember that?

12       A.      Yes.

13       Q.      Did Ms. Udemezue ever ask you any questions

14   about things she didn't understand at those meetings

15   or in-services?

16       A.      I can't remember any of that.       But we left a

17   lot of room for the staff to ask questions for

18   anything they didn't understand.         And if she had

19   questions, we would answer them.

20       Q.      Would she have asked questions if she had

21   them?

22       A.      Yes.    We always left room for questions or

23   comments.

24                      MR. RAVAL:    Pass the witness.

25                      THE COURT:    Mr. Thweatt.




                                                               001218
                                                               25



1                      MR. THWEATT:   Thank you, Your Honor.

2                           CROSS-EXAMINATION

3    BY MR. THWEATT:

4          Q.   Ms. Obichuku, you say that Jenny was the

5    same old Jenny after this fire as she was before; is

6    that right?

7          A.   Yes.

8          Q.   Does that look like the same old Jenny as

9    she was after the fire?

10         A.   I was talking about her personality.

11         Q.   Was Jenny in pain after the fire?

12         A.   Yes.

13         Q.   She wasn't in pain before the fire, was she?

14   That is not the same old Jenny, is it?

15         A.   I was referring to her personality.

16         Q.   You went to the hospital to visit Jenny?

17         A.   Yes.

18         Q.   You saw the wound care that was being

19   provided to her at the hospital, didn't you?

20         A.   Yes.

21         Q.   Did it appear painful to you?

22         A.   Yes.

23         Q.   That wasn't the same old Jenny either, was

24   it?

25         A.   I was referring to her personality.




                                                          001219
                                                                26



1        Q.   Well, Jenny in the hospital wasn't making

2    jokes, was she?

3        A.   I can't remember that, no.

4        Q.   That wasn't a humorous or funny time for

5    her, was it?

6                   Did you spend the night at Ms. Wagner's

7    apartment?

8        A.   I'm sorry.   Can you repeat that?

9        Q.   Did you ever spend the night at Ms. Wagner's

10   apartment?

11       A.   No.

12       Q.   So when you told the jury where Jenny slept

13   and where Jenny resided at nighttime, you didn't have

14   any personal knowledge of that, did you?

15       A.   I did.   I always asked Ms. Wagner, because

16   part of my job is to advocate for the client.     I have

17   to make sure the client is being taken care of, even

18   though she is her mom.

19       Q.   I want to talk to you about Defense

20   Exhibit 59.

21                  Let's bring that up.    Let's scroll down

22   here.

23                  This is a progress note pertaining to

24   Jenny Wagner from Four J's Community Living Center.

25   Do you see that there, Ms. Obichuku?




                                                        001220
                                                                      27



1        A.      Yes.

2        Q.      And your name is right there (indicating),

3    Ngozi Obichuku.        That's you, right?

4        A.      Correct.

5        Q.      Now, if we scroll down on this, that's your

6    signature?

7        A.      Yes.

8        Q.      Would you go ahead and read that progress

9    note that appears on Defense Exhibit 59 aloud to the

10   jury, please?

11       A.      Sure.

12                       "Case Manager called to check on Jenny.

13   The nurse on duty informed me that Jenny's lung test

14   showed that her lungs were slightly affected, and the

15   nurse Alan informed me that Jenny's lungs were in

16   good condition.        He also informed me that Jenny's

17   muscles and heart were also in good condition.           Jenny

18   is expected to have a soon recovery.        Jenny will

19   continue to be hospitalized for the next few days to

20   monitor her oxygen levels.        Case Manager spoke with

21   Jenny's mother, whom was very pleased with Jenny's

22   results."

23       Q.      The case manager is you, right?

24       A.      Correct.

25       Q.      And you are writing this -- see the date of




                                                              001221
                                                             28



1    the note there, September 6, 2008?

2        A.     Uh-huh.

3        Q.     This fire took place on September 4, 2008,

4    right?

5        A.     I don't remember the exact date.

6        Q.     Well, if it did take place on September 4,

7    2008, your case note would have been entered two days

8    after the fire, right?

9        A.     Yes.

10       Q.     And you are saying that two days after the

11   fire, Jenny's mother was very pleased with Jenny's

12   results.    That's what you are saying?

13       A.     I would not be lying in my note.

14       Q.     You wouldn't be lying in your note?

15       A.     I would not be lying in my note.

16       Q.     Who do you work for right now?

17       A.     Four J's Community Living.

18       Q.     Anthonia Uduma is your boss?

19       A.     My program director.

20       Q.     She is your boss, right?

21       A.     Correct.

22       Q.     She is the president of the company?

23       A.     Yes.

24       Q.     You still draw a paycheck from her?

25       A.     Yes.




                                                       001222
                                                               29



1        Q.   You realize that Jenny stayed in the

2    hospital for a month, I think you told us.

3        A.   I was there throughout, so --

4        Q.   And you saw tube in her lungs, right?

5        A.   Yes.

6        Q.   Her lungs weren't in good condition, were

7    they?

8        A.   I didn't make it up.    I said whatever -- you

9    know, my case job as the case manager is to follow up

10   with the hospital as well.    And I give reports, you

11   know, I put whatever they tell me.    And I share that

12   information her mom.

13       Q.   Did you believe that Jenny's lungs were in

14   good condition?

15       A.   I'm not a medical expert.

16       Q.   You are not a medical provider, are you?

17       A.   I'm not a medical expert.

18       Q.   Are you a nurse?

19       A.   No.    I'm a case manager.

20       Q.   Are you a doctor?

21       A.   I told you, I'm a case manager.

22       Q.   Are you a doctor, ma'am?

23       A.   No, I am not.

24       Q.   You told the jury that there were two

25   clients in wheelchairs at Four J's?




                                                       001223
                                                                30



1        A.    Only one.     I never told them two.

2        Q.    Rigo?     You said --

3        A.    I thought you were referring to Beretta

4    Court.   Correct.

5        Q.    Were there other clients there at Four J's

6    in wheelchairs?

7        A.    Yes.

8        Q.    How many?

9        A.    I don't know off the top of my head, but

10   there were other clients that had wheelchairs.

11       Q.    More than ten?

12       A.    I have to count them.     I don't know off the

13   top of my head.

14       Q.    Suffice it to say there was at least two

15   that you know of, right?

16       A.    Yes.

17       Q.    And just like Jenny, in the event of a fire,

18   anybody in a wheelchair who is being cared for by

19   Four J's is going to need to be able to have total

20   care and total assistance in the event of a fire,

21   right?

22       A.    Yes.

23       Q.    How many group homes did you preside over as

24   a case manager?

25       A.    Well, I didn't do it by group homes.     I did




                                                         001224
                                                               31



1    it by clients, you know.     So sometimes I would have

2    one client in a home, or sometimes I will have two

3    clients, or all three clients may be monitored, so.

4        Q.     How many group homes would you say you have

5    been in that were operated by Four J's?

6        A.     Let's see.   Maybe five, six.

7        Q.     And how many clients did you have total?

8        A.     About 22.

9        Q.     Any of those clients, in any of those five

10   or six homes, did you ever see overhead sprinklers in

11   any of them?

12       A.     I don't know.

13       Q.     You can't recall ever seeing overhead

14   sprinklers in any of those homes?

15       A.     No, not that I know of.

16       Q.     Would you agree with me that in the event of

17   a fire in a house where somebody needs total care,

18   somebody is totally reliant on a staff member getting

19   them out, if they can't get them out, an overhead

20   sprinkler would act to suppress that fire quickly and

21   make that person more safe?

22       A.     Well, the HCS Program is a regulated

23   program.    Every year, in order to have a four-bed

24   home, you have to have the fire marshal come out.

25   They tell us what are the regulations we are supposed




                                                        001225
                                                             32



1    to put over the house.

2        Q.   That may be a minimum standard, but you

3    would agree that Four J's can exceed the minimum

4    standard, can't it?

5        A.   We go --

6        Q.   But you try to do your job, right?

7        A.   We go by the State of Texas --

8        Q.   I'm just asking you, Ms. Obichuku, if you

9    understand it, you try, in your job, to do more than

10   the minimum required?

11       A.   I don't understand the question.

12       Q.   Do you try, in your job, to do more than

13   what is just required of you?

14       A.   Yes.

15       Q.   You try to meet or exceed what is required

16   of you, right?

17       A.   Well, I --

18       Q.   You try to provide the best healthcare, the

19   best care that you can, right?

20       A.   Yes.

21       Q.   And you try to make sure that people are as

22   safe as they can, right?

23       A.   Yes.    I put my heart in my job, and I

24   actually get attached to my clients.

25       Q.   It actually is a lot more than just heart,




                                                        001226
                                                              33



1    though, isn't it?   You have to be able to foresee the

2    dangers that your clients may come into contact with,

3    right?

4        A.   That's correct.

5        Q.   And part of that, as your job, is to make

6    sure that they are in a safe environment, right?

7        A.   Correct.

8        Q.   If you can walk into a house where your

9    residents, who can't walk, who can't take care of

10   themselves, and you can see a danger and make it

11   safer for them, you ought to do that, shouldn't you?

12       A.   Correct.

13       Q.   That's part of your job, that's why you work

14   there, right?

15       A.   Uh-huh.    I was an advocate for the clients.

16       Q.   I noticed that you testified that you didn't

17   know how to pronounce Amuche's last name.

18       A.   Correct.

19       Q.   How long did you work with her?

20       A.   I don't remember.    Maybe a year or under.

21       Q.   And after a year, you still didn't know how

22   to pronounce her last name?

23       A.   I don't see why I would know how to

24   pronounce her last name.

25       Q.   She was taking care of Jenny, one of your




                                                        001227
                                                               34



1    clients, right?

2        A.    I don't know the other staff by last name

3    either.   I just know by first name.

4        Q.    How much do you earn at Four J's?

5                   MR. RAVAL:    Objection, relevance.

6                   THE COURT:    Overruled.

7        A.    I earn -- I get paid twice a month, so I get

8    paid about 1,500 each paycheck.

9        Q.    (By Mr. Thweatt)    Do you have any plans on

10   leaving Four J's?

11       A.    I mean, after I finish with schooling, I

12   plan on getting my profession in psychology.

13       Q.    But you plan on staying there as long as

14   they will have you, right, until you are done with

15   your schooling?

16       A.    Correct.

17       Q.    You told us that you understand that the

18   training and the procedures that were outlined in an

19   emergency were not followed on the night of the fire.

20       A.    Correct.

21       Q.    Because of that, would you agree with me

22   that the company, Four J's, bears some responsibility

23   for what happened to Jenny?

24       A.    When -- usually during emergencies, people

25   always want to find a blame.     You have to blame the




                                                          001228
                                                                 35



1    staff, since she was trained.

2        Q.     Well, the staff works for the company,

3    right?

4        A.     Yes.    But the company did everything they

5    can, even including myself, to make sure she was

6    trained.

7        Q.     Did the company preside over fire drills?

8        A.     I'm sorry.    Can you say that again?

9        Q.     Did the company preside over fire drills?

10       A.     What do you mean by preside?

11       Q.     Did they have fire drills?

12       A.     Of course.    Yes.

13       Q.     Did you see those?

14       A.     No.    I just saw the notes.   The fire drill

15   residence staff --

16       Q.     You weren't present for any of those?

17       A.     I'm sorry?

18       Q.     You weren't present for any fire drills?

19       A.     No.    The supervisor did that with the staff.

20       Q.     Who would that be?

21       A.     Whoever the resident supervisor was at the

22   time.

23       Q.     Would you agree with me that a fire drill

24   that tests the ability of the staff member to

25   evacuate a group home like the one in Beretta Court




                                                          001229
                                                               36



1    ought to be conducted with as much realism as

2    possible to ensure that when people have -- confront

3    a real fire, that they respond appropriately?

4        A.   Correct.     Uh-huh.

5        Q.   And that means that the residents should

6    probably be asleep for a couple hours, right?

7        A.   Right.     We have fire drills where we have

8    them asleep, and then we also do it at night where we

9    wake up the clients.

10       Q.   And that means also that those fire drills

11   should be conducted to where, when they are timed,

12   everybody has got to be out of the house and to a

13   safe location before the drill is stopped on the

14   stopwatch, correct?

15       A.   Correct.

16       Q.   You have been in the Beretta Court house,

17   right?

18       A.   Uh-huh.

19       Q.   And you knew Esperanza Arzola, right?

20       A.   Yes.

21       Q.   And you knew that she had a history of

22   suicide attempts?

23       A.   No.

24       Q.   You didn't know that?

25       A.   No.    She wasn't my client, but I knew a




                                                          001230
                                                                37



1    little bit about her.

2        Q.      Did Esperanza's case manager ever speak with

3    her about her needs?

4        A.      No.   I don't see --

5        Q.      Esperanza had a different case manager,

6    right?

7        A.      Correct.

8        Q.      But you never coordinated the care of

9    Esperanza as it might have related or impacted Jenny,

10   did you?

11       A.      No.

12       Q.      What about Elisha Campbell and Tanya James,

13   did they have different case managers too?

14       A.      I was Elisha Campbell's case manager.

15       Q.      Did Tanya James have a different case

16   manager than you?

17       A.      Correct.

18       Q.      Did you ever coordinate what kind of care

19   might be required for Tanya as it related to Jenny,

20   with Tanya's case manager?

21       A.      Whenever someone was new, we had meetings on

22   that.

23       Q.      And are there staffing decisions that you

24   might recommend as a case manager and advocate for

25   somebody?




                                                           001231
                                                              38



1        A.   How?

2        Q.   Let me put it this way, if Jenny -- Jenny

3    was your client, right?

4        A.   Correct.

5        Q.   Could you have gone to Ms. Uduma or somebody

6    at the company and said, look, we need more than one

7    staff in this house to protect Jenny in the event of

8    a fire because she's difficult to get out quickly,

9    and we have these other three people in the house

10   that we need to attend to as well?

11       A.   Right.

12       Q.   Would you have done that?

13       A.   It made it easier -- well, it's supposed to

14   make it easier because Jenny is the only one in a

15   wheelchair.     So it should take them less than two

16   minutes to get out of the home.

17       Q.   Two minutes.

18       A.   Correct.     Less than that.

19       Q.   Then what happens to the other three people?

20       A.   Usually, like Esperanza, Elisha, the high

21   functioning clients, they can just give them verbal

22   and they will get out.     And then the staff is

23   supposed to keep their eye on them to make sure they,

24   you know, are escorted out.     But the first priority

25   should be the client that can't do anything for




                                                        001232
                                                             39



1    themselves.

2        Q.   If that's not trained -- if that's not

3    actually done, like it wasn't on this night --

4        A.   I'm sorry --

5        Q.   If Jenny is not the first person removed

6    from the home, that means that Four J's rules were

7    not followed, right?

8        A.   Correct.

9        Q.   That means one of Four J's employees didn't

10   do their job, right?

11       A.   Correct.

12       Q.   And that's a departure from what, what a

13   reasonable company should expect of its employees,

14   right?

15       A.   I'm sorry.     Can you repeat the question?

16       Q.   That's a departure from what a reasonable

17   company should expect --

18       A.   I don't know what you mean by that.

19       Q.   Let me rephrase it.

20                 The standard of care, I think you are

21   telling us, requires that Jenny be removed first,

22   right?

23       A.   Correct.

24       Q.   If that doesn't happen, that's a departure

25   from the standard of care, right?




                                                        001233
                                                              40



1        A.   Right.

2        Q.   Do you feel it's important, as Jenny's case

3    manager, to know about the propensities and the

4    history of the other clients who might be living in

5    that house with her?

6        A.   I'm sorry.    Can you repeat the question?

7        Q.   Do you think it's important, as Jenny's case

8    manager, to know about the history and the

9    propensities of the other clients who live in that

10   house with her?

11       A.   Well, it depends on the team, if they felt

12   that, because we usually have team --

13       Q.   I'm not asking about the team.    I'm asking

14   whether you, as Jenny's case manager -- you said that

15   she was close to you, that you were her advocate.

16   Don't you think that it's important to know about the

17   tendencies and the history of the other residents in

18   that home, as they relate to Jenny?

19       A.   Well, it depends on the information given at

20   the time of the staff meeting.

21       Q.   Do you think it's important or not?    If you

22   don't, you can tell us.    If you do --

23       A.   Are you asking me personally or for my job?

24       Q.   I'm asking you, in your capacity as Jenny's

25   case manager, your professional capacity, isn't it




                                                       001234
                                                                 41



1    important to you to know the tendencies and the

2    histories of the other residents who live that house

3    with her?

4        A.      The other clients didn't know the tendency

5    of Jenny's background either, so --

6        Q.      Jenny wasn't a threat to anybody, was she?

7        A.      Esperanza or Elisha were, and the other

8    clients were not a threat to Jenny as well.

9        Q.      Esperanza was not a threat to Jenny?

10       A.      Right.   There was no history that I know of,

11   of her being --

12       Q.      You just told us, I think, earlier that you

13   never communicated with Esperanza's case manager.

14       A.      You said if I would communicate with her

15   regarding Jenny and her together.      But on average, I

16   did know a little bit about Esperanza's background.

17       Q.      So what did you know about her?

18       A.      I knew that she was -- how should I say --

19   she is very, like, you know, needy.      She will come in

20   your office a lot.     She will tell you, I want a

21   boyfriend, stuff like that.

22       Q.      Did you know that she tried to kill herself?

23       A.      No, I didn't know that.

24       Q.      Did you know she was on antipsychotic

25   medication?




                                                           001235
                                                                42



1        A.   No, I didn't know that.

2        Q.   Did you know that she was bipolar and

3    schizophrenic?

4        A.   I knew she was bipolar.     I didn't know she

5    was schizophrenic.

6        Q.   Did you know that she had been sexually

7    assaulted as a child?

8        A.   I think I heard that, maybe.

9        Q.   Before the fire?

10       A.   Yes.

11       Q.   You knew all that?

12       A.   The questions I said yes to.     Because I

13   don't have her -- you know, usually, other case

14   managers, we don't read each other's client history

15   and all unless it is given to us.

16       Q.   Oh.     Well, don't you think it's important,

17   if you knew those kinds of things about Esperanza

18   Arzola, that she have extra supervision?

19       A.   She had supervision based on what DADS,

20   Department of Aging and Disability, whatever --

21       Q.   I'm talking about in the home, where she

22   lived.

23       A.   I don't understand.

24       Q.   I'm about talking about, knowing what you

25   say you have told us that you knew, don't you think




                                                           001236
                                                                43



1    that it was important that Esperanza Arzola have

2    extra supervision in the house?

3        A.   If the State says she --

4        Q.   I'm not asking what the State says.      I'm

5    asking what you think.

6        A.   I agree with whatever the State says.

7        Q.   Whatever the State says is what you say?

8        A.   Right.    Because that's what, you know --

9        Q.   Is that your position?

10       A.   Yes, because --

11                   THE COURT:   One at a time.   Let her

12   finish her answer, please.

13       A.   I'm sorry.    Can you repeat your question?

14       Q.   (By Mr. Thweatt)     Whatever the State says is

15   fine with you; is that right?

16       A.   Right.

17                   I didn't find Esperanza to be a harm to

18   Jenny or any of the other ladies in the home.

19   Esperanza was actually very nice to Jenny.

20       Q.   Do you agree with me, Ms. Obichuku, that

21   fire presents an extreme degree of risk --

22       A.   Yes.

23       Q.   -- to Jenny Wagner?

24       A.   Yes.

25       Q.   And you had an actual, subjective awareness




                                                         001237
                                                                  44



1    of that risk before the fire, right?        You understand

2    personally what kind of risk that presented to Jenny,

3    right?

4           A.   Uh-huh.

5           Q.   Before the fire, you understood that?

6           A.   Yes.   Right.

7           Q.   And despite understanding that, you never

8    made a recommendation that Jenny have an extra

9    caregiver in the home, did you?

10          A.   I didn't feel like there was a need.

11          Q.   And despite understanding the risk of fire,

12   you never made a recommendation that Jenny be placed

13   in a house, say, with overhead sprinklers or extra

14   fire protection, did you?

15          A.   We are under DADS regulation --

16          Q.   I'm not asking about the regulation.     I'm

17   asking whether or not you made the recommendation or

18   not.

19          A.   I don't understand the question.

20          Q.   Did you ever make a recommendation that

21   Jenny be moved into a house -- you said you went into

22   five or six of them.        Did you ever make a

23   recommendation that Jenny be moved into a house that

24   might have had overhead sprinklers in it?

25          A.   No.    None of our homes -- whatever -- we




                                                           001238
                                                                   45



1    follow whatever DADS regulates us to.         If the State

2    feels like we have to have sprinklers -- because we

3    have audits and stuff.        And their number one goal is

4    client safety, the environment is protected, and

5    that's also my goal for the client.

6                     MR. THWEATT:     Objection, nonresponsive.

7                     THE COURT:     Overruled.

8                     MR. THWEATT:     Pass the witness.

9                     THE COURT:     Mr. Sparks.

10                    MR. SPARKS:     Thank you, Your Honor.

11                         CROSS-EXAMINATION

12   BY MR. SPARKS:

13       Q.   Good morning, ma'am.

14       A.   Good morning.

15       Q.   How are you today?

16       A.   Fine, thank you.

17       Q.   Ms. Obichuku?

18       A.   Obichuku.

19       Q.   Just a couple questions.        Tell the jury the

20   type of woman who Elisha -- was it Elisha Campbell?

21       A.   Yes.

22       Q.   Tell the jury about Elisha.

23       A.   Elisha, she has schizophrenia, paranoid

24   schizophrenia.     She is also a client that is very

25   kind, very sweet.     She loves to write all day.      She




                                                            001239
                                                             46



1    has, I think, a fifteen or eighteen hundred calorie

2    diet.

3        Q.   What about her aggressive behaviors?

4        A.   She has issues of aggression, but Elisha did

5    not have any -- all of her behaviors, she did not

6    have any -- she did not display any behaviors at the

7    Beretta Court Home.

8        Q.   Tell the jury about she being the last

9    person in the group, in terms of the four women that

10   lived there.

11       A.   I'm sorry.     Would you repeat that?

12       Q.   Tell the jury about her being the last

13   person in the group of the four women that lived

14   there.   She was the last person to make up that

15   four-person group home, correct?

16       A.   Yes, that's correct.

17       Q.   And she also came from the same environment

18   that Esperanza Arzola came from; is that correct?

19       A.   No, she did not.

20       Q.   She did not?

21       A.   No.

22       Q.   So when you made the staffing decision to

23   put her in the four-person Beretta Court Home, you

24   didn't know whether or not she had a history with

25   Esperanza Arzola?




                                                        001240
                                                                 47



1        A.      She came from Beaumont.

2        Q.      She came from Beaumont?

3        A.      Esperanza came from Corpus Christi.

4        Q.      And they had never been in the same facility

5    together.     Is that what you're saying?

6        A.      Elisha had lived with her parents.    She was

7    new to the program.

8        Q.      You knew she had some aggressions issues,

9    correct?

10       A.      Yes.

11       Q.      Did you ever staff with Ms. Anthonia Uduma

12   whether or not putting that individual with an

13   aggressive personality with a person who was already

14   in there with an aggressive personality as Esperanza

15   Arzola?

16       A.      Ms. Uduma usually didn't attend the staffing

17   meetings.     It was just -- the staff meetings

18   consisted of the IDT Team.

19       Q.      Who makes a determination where they are

20   placed?

21       A.      The client?   Their parent, if they have a

22   parent, or their guardian, and the team from the

23   state school.

24       Q.      Who made the determination with Esperanza --

25   I mean, with Elisha Campbell to put her in that home




                                                         001241
                                                              48



1    on Beretta Court?

2        A.   They give her -- well, Elisha is her own

3    guardian, so they give her a right to look at

4    different homes, which she did.     And then she chose

5    that home.     They give her a chance to see her

6    roommates in advance as well.

7        Q.   Were you present when that happened?

8        A.   Yes.

9        Q.   Did you make the recommendation to put her

10   there?

11       A.   No.    We can never do that.

12       Q.   Were you aware of putting her there with

13   Esperanza Arzola?

14       A.   Yes.

15       Q.   Was it ever a concern, with her aggressive

16   personality, in the same home with Esperanza Arzola?

17       A.   Elisha was not aggressive.

18       Q.   You just testified to the jury that she was.

19       A.   At the Beretta Court Home, she had never

20   had, not one behavior.

21       Q.   But prior to that --

22       A.   Uh-huh.

23       Q.   Prior to that, you knew she was aggressive.

24       A.   She had a history of aggression.

25       Q.   She had a history of aggression.




                                                        001242
                                                             49



1        A.   Correct.

2        Q.   And you don't know whether or not you ever

3    had a conversation to determine whether that was a

4    good match, putting her in the Beretta Court property

5    with Esperanza Arzola?

6        A.   I can't remember that.

7        Q.   You can't remember that?

8        A.   No, sir.

9        Q.   Would that have been something that you

10   think you would want to remember?

11       A.   Maybe.     It was a long time ago.

12       Q.   Now, the four clients weren't the only

13   persons in the home; is that correct?

14       A.   Correct.

15       Q.   You had other staff, you had staffing,

16   right?

17       A.   Yes.     Twenty four hour supervision.

18       Q.   Did you ever consider whether or not those

19   two women together could be aggressive and

20   threatening to the staff?

21       A.   No.    Not that I can recall.

22       Q.   So it was never a concern to you, or it

23   never came to your attention for the whole year,

24   that -- or the period of time that Ms. Amuche worked

25   there, that she was concerned about her safety being




                                                        001243
                                                                  50



1    in a home with Esperanza Arzola and Elisha Campbell?

2        A.   Can you repeat the question?

3        Q.   Did it ever come to your attention that the

4    staff was concerned about the aggression of those two

5    women in the home?

6        A.   Not that I can remember.

7        Q.   Not that you can remember?

8        A.   Right.

9        Q.   You say your job was the advocate of the

10   client; is that right?

11       A.   Right.

12       Q.   What does that mean?

13       A.   Advocate means, like, for instance, I speak

14   for the client if they can't speak for themselves.       I

15   help protect their rights.

16       Q.   So if you went to the home and you saw a

17   situation that wasn't correct, your job was to

18   advocate to whom for the client?

19       A.   Yes.     I report the staff.   Sometimes I am

20   able to write the staff up as well.      If I see

21   something done wrong or if I see the client is not in

22   a safe place, I will do my best, you know, address it

23   with the team.

24       Q.   The in-service training that you guys had,

25   that was done when the staff would go pick up their




                                                         001244
                                                                  51



1    paychecks, right?

2        A.     Right.     We have to -- there is usually,

3    like, a two-hour meeting, and then they pick up their

4    checks afterwards.

5        Q.     So an individual who had worked 40, 50

6    hours, 60, 70 hours over a two-week time period,

7    around the clock, without sleeping in the home --

8        A.     Oh, no.     We have shifts that --

9        Q.     Can I finish my question?

10       A.     Sorry.

11       Q.     An individual that would work those many

12   hours, ready to pick up their checks, had to sit

13   through a two-hour service just to get their money

14   that they have already worked for?

15       A.     Well, we don't look at that way.

16       Q.     Is that a yes or no?

17       A.     I'm sorry.     Can you repeat the question?

18       Q.     Is that a yes or no?

19       A.     Okay.     You have to repeat the question

20   again.

21       Q.     An individual who has worked 50, 60, 70

22   hours, around the clock, not being able to sleep at

23   the facility, goes to pick up their check.       In order

24   to get it, they have to go through a two-hour

25   meeting.    Is that correct?




                                                             001245
                                                                52



1        A.   That's not correct.

2        Q.   That's not correct?

3        A.   We have -- for those staff -- we have some

4    staff in school, so they are not able to make it to

5    the meeting.    So they come back the next day or the

6    next day after or that evening.

7        Q.   So it wouldn't be unreasonable, then, for

8    somebody to not have gone through these trainings; is

9    that correct?

10       A.   Everybody has to go through the trainings.

11       Q.   Everybody has to go through the training?

12       A.   Right.

13       Q.   In order to get their checks?

14       A.   Right.     We make it convenient for the staff.

15   If they can't make it to the 12:00 o'clock meeting,

16   they will come, maybe, around 4:00 o'clock, or they

17   will come the next day.

18       Q.   Who was the individual that was on the table

19   that you guys were mimicking and working with when

20   some in-service training was dealing with --

21       A.   Ms. Anthonia was the one that was on the --

22   she put her body on the table in the staff.

23       Q.   Ms. Anthonia?

24       A.   Correct.

25       Q.   You went and saw individuals pick her up,




                                                        001246
                                                                  53



1    put her on the floor, drag her out?

2        A.     Right.

3        Q.     You also saw Ms. Amuche do that?

4        A.     Yes.

5        Q.     I thought you said you didn't remember.

6        A.     Well, I mean, I remember now.    But I think

7    she did.

8        Q.     You remember now?

9        A.     Yes.

10       Q.     But you think she --

11       A.     Because I remember she was involved.

12   Everybody was involved through the meeting.       They all

13   took turns.

14       Q.     Was the table as high as this?

15       A.     It was like one of those standard white

16   tables that you use, like during meetings and stuff,

17   like a white square table.

18       Q.     They picked her up, each individual?

19       A.     They grabbed her by the shoulders and pulled

20   her off.    Some of the staff was scared that they were

21   going to hit her head but, you know, they were like,

22   you know, so they were all taking turns.

23       Q.     Now, did they all do it correctly?

24       A.     I mean, some, you know, were -- she was

25   having to lift for some, like the smaller staff, but




                                                          001247
                                                                   54



1    they all did it.

2        Q.      And you say you went to a lot of these

3    in-services, right?

4        A.      Right.     I would lead some of them as well.

5        Q.      But you never heard of Dr. Lockwood?

6        A.      I did.

7        Q.      You did?

8        A.      He was there for all of the meetings as

9    well.

10       Q.      So Dr. Lockwood -- you weren't there when he

11   did training about the issues and aggression

12   tendencies of Esperanza?

13       A.      He -- yeah, I probably was there.

14       Q.      Probably was there?

15       A.      Yes.     Because he went first, like from 12:00

16   to 12:30.

17       Q.      So if you probably were there, then you

18   would have known about the training issues of

19   Esperanza?

20       A.      Right.

21       Q.      And that would have been of some concern to

22   you, would it not?

23       A.      I don't know what you mean.

24       Q.      Would that have been concern to you about

25   the issues he was speaking of in reference to




                                                           001248
                                                                 55



1    Esperanza?

2        A.   It wasn't a concern at the time.

3        Q.   It wasn't a concern?

4        A.   Right.

5        Q.   So when Dr. Lockwood is giving a training

6    dealing with the aggressive tendencies of Esperanza,

7    her psychiatric issues, her suicidal tendencies and

8    things of that nature, you may have heard about it,

9    it may have been something concerning you, but not

10   necessarily so?

11       A.   Because he in-services -- how he does his

12   in-services, he does it on not when issues come up,

13   he does it based on behavior therapy plan and shows

14   staff how to prevent behavior if she has them.      These

15   are the key things you want to watch out for, and

16   these are how to control it.

17       Q.   Now, here he is, we have a trained

18   professional that comes to do in-service --

19       A.   Uh-huh.

20       Q.   -- to help train the employees of Four J's.

21       A.   Correct.

22       Q.   Correct?   To apprize them of issues and

23   tendencies of problematic clients, right?

24       A.   Correct.

25       Q.   And Esperanza Arzola is certainly one?




                                                         001249
                                                                    56



1           A.      Uh-huh.

2           Q.      And she is also in the home where you have

3    two clients, correct?

4           A.      Correct.

5           Q.      You have Jenny Wagner --

6           A.      That's correct.

7           Q.      -- and you have got Elisha Campbell?

8           A.      Correct.

9           Q.      And Elisha Campbell is the new addition to

10   the four ladies in that home, correct?

11          A.      That's correct.

12          Q.      And you are here to tell this jury that you

13   weren't concerned about what Dr. Lockwood had to say

14   about her behavior?

15          A.      I don't see -- there are guardians as well

16   for -- each team knew about Esperanza, so that is not

17   my call to make.

18          Q.      I am not asking you in reference to whether

19   it was your call.         I want to know whether it was your

20   concern.

21          A.      I can't remember.   That was so many years

22   ago.        If it was a concern, I would have addressed it.

23          Q.      And you never addressed it?

24          A.      No.

25          Q.      So it wasn't a concern.




                                                            001250
                                                                  57



1        A.      Right.    Esperanza was --

2        Q.      What about when Dr. Lockwood talked about

3    the aggression tendencies and personalities of Elisha

4    Campbell?

5        A.      What about it?

6        Q.      Was that a concern?

7        A.      She was my client, so it was definitely my

8    concern.

9        Q.      What did you make of that, when he talked in

10   reference to the staff members regarding her?

11       A.      I made sure they were trained, you know,

12   they had to attend the meeting by force.       And to make

13   sure how to prevent -- that's his key part of all his

14   training that he does, prevent, prevention.

15       Q.      Okay.    So you made sure they got to the

16   meeting by force.       What do you mean by that?

17       A.      I mean, they can't get their checks without,

18   you know -- because we can't keep them on the

19   schedule if they don't be --

20       Q.      So they can't get paid unless they go

21   through additional training?

22       A.      Right.

23       Q.      Now, did they get paid going through the

24   training?

25       A.      What do you mean?




                                                             001251
                                                                    58



1        Q.      I mean was that -- that two-hour training,

2    was that two hours more on their check the following

3    week?

4        A.      No.

5        Q.      It was not?

6        A.      Not to my knowledge.

7        Q.      So having worked all those hours, you go to

8    pick up your check, you got to go through the

9    training.     If you don't go through the training, you

10   don't get your check.        And then if you go through the

11   training, you don't get more money on your check?

12       A.      Sorry.     Correction.   It's like you -- if you

13   don't go through the training, you are going to be

14   moved off the schedule because you have to know about

15   the client care.

16       Q.      And if you go through the training, you

17   don't get paid additional money?

18       A.      No.   Because it's a part of the Four J's

19   standard, it's the policy.

20       Q.      But that is correct?

21       A.      Correct.

22       Q.      Advocate for the client.      What did you

23   advocate in reference to helping get individuals who

24   were in the wheelchairs out of the home?         What did

25   you advocate to?




                                                              001252
                                                                59



1        A.   To teach the staff how to transport them,

2    make sure they change the diapers every two hours.     I

3    would tell them, don't leave them in the bed all day.

4    Like, for instance, Jenny, she was in a wheelchair.

5    Every two hours, you can take her from the bed to the

6    recliner to the wheelchair.   She would go --

7        Q.   Now, Mr. Thweatt asked you about whether

8    there was possibly maybe ten people in wheelchairs,

9    because you didn't know the number, correct?

10       A.   Correct.

11       Q.   But you said it was at least two, possibly

12   maybe ten?

13       A.   I don't know the exact number.

14       Q.   I'm not going to hold you to the ten.

15       A.   Okay.

16       Q.   But you had other clients besides Jenny who

17   were wheelchair bound?

18       A.   Correct.

19       Q.   In other homes?

20       A.   I would have, like, three or four clients,

21   maybe three, maybe four clients that are in

22   wheelchair.

23       Q.   That are owned by Four J's --

24       A.   Correct.

25       Q.   -- that you were case manager of?




                                                      001253
                                                               60



1        A.   Correct.

2        Q.   Give us the addresses of all those

3    properties that had deadbolt locks on them on exit

4    doors.

5        A.   None that I know of.

6        Q.   I'm sorry?

7        A.   None that I know of.

8        Q.   None that you know of?

9        A.   Correct.

10       Q.   None of the properties that you went to,

11   owned by Four J's, with individuals that were under

12   your care, had a deadbolt lock on the door?

13       A.   Correct.     Not to my knowledge.

14       Q.   Not to your knowledge?

15       A.   Correct.

16       Q.   How often did you go out to the homes?

17       A.   I live in Missouri City.     So I would go to

18   Beretta Court often.     I would say, maybe, out of the

19   week, I would go sometimes maybe twice a week.     I

20   would go -- as a case manager, I am required to go

21   see my clients at either the home or the day-hab; but

22   I would see the home.

23       Q.   And when you went to the Beretta Court

24   property, how did you get in?

25       A.   I knocked on the door, always.




                                                        001254
                                                                61



1        Q.   You went in the front door?

2        A.   Yes.

3        Q.   Did you ever exit any other doors?

4        A.   Huh-uh.

5        Q.   Went in the front, always left out the

6    front?

7        A.   Correct.

8        Q.   So if there has been testimony here that

9    there was a deadbolt lock on the exit door to the

10   back, that would be news to you?

11       A.   Yes.

12       Q.   Would you disagree with it?

13       A.   It's information to me.

14       Q.   Information to you?

15       A.   Yes.

16       Q.   So all the time that you worked for Four J's

17   since this fire --

18       A.   Uh-huh.

19       Q.   -- out of all the things you have heard

20   about, the other employees you have talked to, this

21   is the first you have ever heard that that property

22   had a back door that had a deadbolt lock on it.       Is

23   that your testimony?

24       A.   I'm sorry.    Can you repeat the question?

25       Q.   Yes, I can.




                                                        001255
                                                                   62



1                        Out of all the persons that you have

2    talked to since the fire at Beretta Court, this is the

3    first time, this morning, that you heard that that

4    back door had a deadbolt lock on it?

5           A.   I heard there was -- I think, back when the

6    fire was being investigated, back when -- after it

7    happened, there was a deadbolt or something on it.

8    But I don't know if it was supposed to be there or

9    not.

10          Q.   You don't know if it was supposed to be

11   there or not?

12          A.   Correct.

13          Q.   And if the State said it wasn't supposed to

14   be there or not, since you go along with whatever the

15   State says, that's correct?

16          A.   Right.

17          Q.   The other properties that you went to, when

18   you were telling the individuals how to extricate

19   those clients in the wheelchairs, did you ever help

20   them or have them demonstrate to you how they would

21   do it?

22          A.   Some, maybe.     I don't know the exact homes I

23   would, but, you know -- because most of our meetings

24   took place in the monthly meetings.

25          Q.   Okay.




                                                           001256
                                                               63



1        A.     And in the office.

2        Q.     Now, you mentioned that you didn't

3    necessarily read other case workers' notes; is that

4    correct?

5        A.     Right.

6        Q.     About other individuals in the home?

7        A.     No.

8        Q.     You didn't read their notes?

9        A.     No.   I didn't have time to do that.

10       Q.     Tell the jury why you would read notes in

11   reference to issues regarding fire drills.

12       A.     Because that was my client.    Anything

13   pertaining to my client, I have to follow.

14       Q.     Anything pertaining to your client, you have

15   to follow?

16       A.     As part of the advocate, my job as

17   monitoring -- as the case manager, I am responsible

18   for monitoring all of the services, fire drills, even

19   environmental surveys.

20       Q.     Did you know that in the event of an

21   emergency that Tanya James was -- I mean, the

22   caseworker, the care staff was instructed in how to

23   go in and extricate Tanya James?

24       A.     You mean how to get her out of the home?

25       Q.     Yes, ma'am.




                                                          001257
                                                                 64



1        A.     Yes, the staff should have been trained on

2    that.    I wasn't there at the actual training when the

3    case manager probably in-serviced, you know, on that;

4    but she should have been trained on that.

5        Q.     She should have been trained on that?

6        A.     Yes.   But I wasn't there with the case

7    manager.    I just trained --

8        Q.     Were you there at the hospital, with Tanya

9    James at the hospital?

10       A.     Yes.   I loved Tanya as well.   She's, she's a

11   very lovable client.

12       Q.     Tell the jury how she appeared to you when

13   you saw her at the hospital.

14       A.     When I saw Tanya at the hospital, she was

15   burnt and not really, you know, she was -- you could

16   still see her face and everything, but I don't know

17   what portion of her body that had the, the -- it just

18   felt like a nightmare, and I'm like -- I asked the

19   nurse, and they said, the next day or so, they

20   pronounced her dead.

21       Q.     You have been over to the day-hab facility,

22   have you not?

23       A.     I'm sorry.   I didn't hear what you said.

24       Q.     You have been over to the day-hab facility,

25   have you not?




                                                          001258
                                                                   65



1        A.      Yes, I have.     I have to see my clients.

2        Q.      You have clients over there, too, you see,

3    right?

4        A.      Correct.

5        Q.      Is it a common practice that other clients

6    over there had access to smoking materials?

7        A.      No.     Well, you know, the clients are allowed

8    to smoke.     But they don't keep the lighters, the

9    staff keep the lighters.

10       Q.      Okay.    They are allowed to smoke?

11       A.      Correct.     They have smoking breaks that they

12   take.

13       Q.      They have smoking breaks?

14       A.      Correct.

15       Q.      So Esperanza wasn't the only person in the

16   whole day-hab community that went five times a week

17   who had access to cigarettes and lighters; is that

18   correct?

19       A.      She didn't have access -- none of the

20   clients have access to lighters.        The staff are the

21   ones that issue out the lighters.

22       Q.      The staff issue the lighters?

23       A.      Correct.     And they would take it back after

24   the clients were done during their break.

25       Q.      You know that for a fact?




                                                              001259
                                                                 66



1        A.     That's a part of the policy they all follow.

2        Q.     So it wouldn't be unreasonable, then, to

3    have a record of some sort to say staff gave out nine

4    lighters, nine lighters came back?

5        A.     Correct.

6        Q.     There is a record of that?

7        A.     I mean, that's what they -- you know, that's

8    the procedure they follow.

9        Q.     That's the procedure they follow?

10       A.     Correct.

11       Q.     They give out nine lighters, and they

12   collect nine lighters back?

13       A.     Correct.

14       Q.     So if a lighter didn't come back, what would

15   they do?

16       A.     They would ask the client right away, and

17   the client usually would give it.       We never had that

18   issue before.

19       Q.     What happened if, for example, the lighter

20   stopped lighting?

21       A.     I guess the staff would have an additional

22   one, or they would call the supervisor if they need

23   something.

24       Q.     So you give out nine lighters and seven came

25   back, and they say, oh, the lighter fluid was gone.




                                                          001260
                                                                    67



1        A.   They can call the residential staff -- I

2    mean, the supervisor to go and get one, or they call

3    the case manager, whoever is on duty.

4        Q.   You are telling me what they could do.         Tell

5    me what they did.    What is the policy or procedure

6    regarding that?     Because I get the impression you

7    don't know, you are making this up.

8        A.   I am not lying to you.      I'm a Christian.

9                    But at the same time, for lighters, I

10   didn't have any of my clients that smoke.

11       Q.   I didn't ask you did you have any clients

12   that smoke.

13       A.   Frankly, you are asking me to see it as if I

14   saw it, those are my clients.

15       Q.   But you did see smoke?

16       A.   Yes.

17       Q.   You did see personnel at the day-hab

18   facility dispensing lighters to them?

19       A.   Yes.

20                   MR. SPARKS:    Pass the witness, Judge.

21                   THE COURT:    Mr. Raval.

22                       REDIRECT EXAMINATION

23   BY MR. RAVAL:

24       Q.   Ms. Obichuku, you told us earlier that you

25   are a client advocate and you help protect their




                                                         001261
                                                                   68



1    rights; is that correct?

2        A.   Correct.

3        Q.   What rights are you protecting, exactly?

4        A.   The rights that are given by the State.       You

5    know, each client has a right to be treated with

6    dignity and respect.     There is a list of rights that

7    each client has.     They all have the same rights.

8        Q.   Was it your job as a client advocate to make

9    sure those rights were addressed?

10       A.   Correct.     Make sure they were being talked

11   to with respect and everything.     Right.

12       Q.   You were asked a number of questions about

13   how the team decides what client goes into a home.

14   Do you remember those questions?

15       A.   I'm sorry.     Can you reask that question?

16       Q.   You were asked some questions about the

17   staffing for the group home and how was it decided

18   how many staff members are needed in a group home.

19   Do you remember those questions?

20       A.   Can you say the question again?     I'm sorry.

21       Q.   Okay.     What happens -- what does the IDT

22   Team -- what does IDT stand for?

23       A.   Interdisciplinary Team.

24       Q.   What does the Interdisciplinary Team do?        Or

25   does it do anything with making recommendations about




                                                           001262
                                                                69



1    how many staff should be in a particular group home?

2        A.   Yes.   That's some of the things they can

3    plan as well.

4        Q.   How is that done?

5        A.   Well, depending on the clients, you know,

6    something by the psychologist.     The psychologist will

7    say, this client requires one-on-one.     The

8    psychologist can make the recommendation.       If the

9    psychologist in the state school where they came from

10   says one -- a shift staff or minimal supervision --

11   we have supervised living as well that requires

12   minimal supervision.     It depends on whatever the

13   state school, wherever they came from, what type of

14   supervision.    And whenever we staff them in, we

15   assess that, you know, to see if this client, what

16   type of supervision they need, if it's, you know, we

17   back it up and make sure that's the proper -- and if

18   it's not the proper supervision, then we try to

19   appeal it with the State.

20       Q.   You were the case coordinator for

21   Ms. Campbell at the Beretta Court Home, correct?

22       A.   Case manager.

23       Q.   Case manager, I'm sorry.

24                   Did you make a recommendation or appeal

25   that there should be more than one staff member at the




                                                           001263
                                                                70



1    Beretta Court Home when Ms. Campbell arrived there?

2        A.     No.

3        Q.     Why not?

4        A.     I didn't see any need.     We can't say that.

5    It has to come from the psychologist, if he says it's

6    one-on-one, so.

7        Q.     Do you know if Dr. Lockwood, the

8    psychologist, made that recommendation?

9        A.     No.   It would have been in our behavior

10   plan.    No, he did not make that.

11       Q.     Was Ms. Campbell a danger to Jenny or the

12   other residents in the Beretta Court Home?

13       A.     She didn't have any incidents of -- she

14   didn't have any behaviors at all at the Beretta Court

15   Home.

16       Q.     At the time she moved into the Beretta Court

17   Home, did you believe she could have posed a danger

18   to the other clients in the home?

19       A.     I mean, I don't know when clients have --

20   can do a behavior or not.       So we just go by what we

21   staff them in.     So, no, I don't think so.

22       Q.     Was it your opinion that Esperanza Arzola

23   posed a danger to either of your clients,

24   Ms. Campbell or to Ms. Wagner?

25                    MR. THWEATT:   Objection, foundation.




                                                           001264
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1                      THE COURT:     Overruled.

2        A.      No.

3        Q.      (By Mr. Raval)      Why not?

4        A.      Esperanza -- are you talking about Esperanza

5    or Elisha?

6        Q.      Well, I'm asking you -- you had two clients

7    in the Beretta Court Home, right?

8        A.      Uh-huh.

9        Q.      Was it your opinion that Esperanza Arzola

10   was a danger to either of those two clients in the

11   home?

12       A.      No.

13       Q.      Why not?

14       A.      Esperanza was not aggressive towards any of

15   the clients.

16                     MR. SPARKS:     Objection, Your Honor.

17                     THE COURT:     Grounds?

18                     MR. SPARKS:     Speculation.

19                     THE COURT:     Overruled.

20       A.      She was not aggressive towards anybody in

21   the home.     She was actually a very nice client, when

22   you saw her other side.         The other side of her would

23   be crying all the time.         But she was very, very

24   loving at the same time.

25       Q.      (By Mr. Raval)      Did you ever see Esperanza




                                                              001265
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1    interact with either of your clients at the home?

2        A.      Yes.

3        Q.      What were those interactions like?

4        A.      She treated Jenny as if Jenny was her

5    daughter.     She loved Jenny.   She treated Elisha like

6    she was her sister.     They were like family to her.

7    She didn't have family.

8        Q.      You were asked some questions about some of

9    the fire drills that were conducted.      Did you conduct

10   any fire drills?

11       A.      No.

12       Q.      Who would have conducted the fire trials at

13   Beretta Court?

14       A.      The resident supervisor.

15       Q.      Do you remember who that was in 2008 for

16   Beretta Court?

17       A.      There was two.   I don't know who was

18   assigned to that house.      There was Rosemary, and

19   there was Mr. Inya.

20       Q.      Mr. Inya?

21       A.      Uh-huh.

22       Q.      You described for us earlier about some of

23   the training that you gave to the staff at the

24   Beretta Court Home.     Why is training so important?

25       A.      Because you got to make sure the staff




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1    understand what to do for the client, making sure

2    their diet is being followed, behavior preventions

3    are being prevented.      They have behavior.   There is

4    things you can prevent them from happening.       It's

5    also important because, to make them understand how

6    the client -- how to communicate with the client, you

7    know, what tone of voice to use, things like that.

8        Q.     Is it also important for the staff to know

9    what to do in the event of an emergency?

10       A.     Correct.

11       Q.     Did you give that proper training?

12       A.     Yes.

13                     MR. RAVAL:   Your Honor, pass the

14   witness.

15                     THE COURT:   Mr. Thweatt.

16                         RECROSS-EXAMINATION

17   BY MR. THWEATT:

18       Q.     The caretaker on duty the night of the fire,

19   Ms. Amuche, she spent much more time in that home

20   than you did; isn't that right?

21       A.     Correct.

22       Q.     So if she has a different recollection and

23   she has testified that Esperanza Arzola had scared

24   her, you don't have any reason to dispute her

25   testimony in that regard, do you?




                                                           001267
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1        A.   No.     I know Esperanza, you know, she would

2    cry a lot and her eyebrows would look dark sometimes

3    but --

4        Q.   The important thing that I am trying to

5    emphasize with you, Ms. Obichuku, is that she knew

6    how Esperanza operated in that home because of the

7    amount of time, as related to you, she had a much

8    better perspective on that, didn't she?

9        A.   Right.     She worked there.

10       Q.   Thank you.

11                    MR. THWEATT:     Pass the witness.

12                    THE COURT:     Mr. Sparks.

13                    MR. SPARKS:     Thank you, Your Honor.

14                        RECROSS-EXAMINATION

15   BY MR. SPARKS:

16       Q.   In making sure that your clients had the

17   ability to get out properly in an emergency, wouldn't

18   you want to have them demonstrate to you their

19   ability to get out of all doors that were designated

20   as exists?

21       A.   That's -- the resident supervisor comes in,

22   and they do the training with the staff and the

23   clients to make sure -- they actually observe them do

24   the actual fire drills.

25       Q.   I understand that.        But I'm not talking




                                                              001268
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1    about fire drills.       I'm talking about emergencies.

2        A.     Evacuation.     Right.   When I came to the

3    house, I pointed to which place would be the safest.

4        Q.     You pointed to which place would be the

5    safest?

6        A.     Correct.

7        Q.     And when you went to Beretta Court, did you

8    do that?

9        A.     Yes.

10       Q.     Where did you point to, the safest --

11       A.     The hallway beside Tanya and Jenny's room if

12   a hurricane were to take place, or a tornado.

13       Q.     What about fire?

14       A.     Fire.    You know, I can't remember exactly.

15   Maybe the exits, whatever doors that are close by,

16   the garage door, the back door, the front door.

17       Q.     You told them to consider taking them out

18   the back door?

19       A.     Right.     Or the window.

20       Q.     But you never exited the back door?

21       A.     I went to the backyard before.

22       Q.     You did?

23       A.     Yes.

24       Q.     When?

25       A.     I can't remember when, but I have been there




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1    before.    Because I have been to the house for years.

2        Q.     You went to the house for years?

3        A.     Yes.     Visiting my clients.       Sometimes we

4    would have parties out there, in the backyard.

5        Q.     When did you start working for Four J's?

6        A.     2004.     Jenny has been my client since I

7    first came.

8        Q.     But you had no idea that that back door had

9    a deadbolt lock on it?

10       A.     No.

11                      MR. SPARKS:     Pass the witness, Judge.

12                      THE COURT:     Mr. Raval.

13                      MR. RAVAL:     No further questions.

14                      THE COURT:     Any reason this witness

15   can't be excused?

16                      MR. RAVAL:     No, Your Honor.

17                      MR. THWEATT:     No, Judge.

18                      MR. SPARKS:     No objection.

19                      THE COURT:     Thank you for your time,

20   ma'am.    You are excused.

21                      (The witness was excused.)

22                      THE COURT:     We're going to take our

23   mid-morning break.       We will start back up at 5 after

24   10:00.

25                      (Jury excused from the courtroom.)




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1                     (Recess.)

2                     THE COURT:     Thank you.   Please be

3    seated.

4                     BAILIFF:     All rise.

5                     (The jury present, proceedings resumed

6                     in open court as follows.)

7                     THE COURT:     Thank you.   Please be

8    seated.

9                     Defense, call your next witness, please.

10                    MR. RAVAL:     Your Honor, the defense

11   calls Inya Ogbonna.

12                    BAILIFF:     If you will stand here and

13   raise your right hand, the Judge will swear you in.

14                    (Witness placed under oath.)

15                    THE COURT:     Have a seat, please.

16                    You may proceed.

17                    MR. RAVAL:     Yes, Your Honor.

18                           INYA OGBONNA,

19   having been placed under oath, testified as follows:

20                        DIRECT EXAMINATION

21   BY MR. RAVAL:

22       Q.    Please introduce yourself to the jury.

23       A.    Yes.    My name is Inya Ogbonna.

24       Q.    Can you spell that, please?

25       A.    I-N-Y-A, Inya.       Last name, O-G-B-O-N-N-A.




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1          Q.   Mr. Ogbonna, what do you do for a living?

2          A.   I work at Four J's Community Center.

3          Q.   What's your job duty right now at Four J's?

4          A.   I'm the residential supervisor.

5          Q.   What's the role of a residential supervisor?

6          A.   The role, I, what I do is to make sure that

7    the staff do what they are asked to do, take care of

8    the clients we have, make sure that the houses are

9    clean, the clients are taken care of, and the other

10   duties that they are supposed to do they are able to

11   do it.     That they have what they need to do their

12   job, I make sure they have it.

13         Q.   Can you describe for us briefly what the

14   types of employees are at Four J's?     We heard earlier

15   about case staff.     We have heard about care

16   coordinator.     Now you are describing for us

17   residential supervisors.     Can you please tell us how

18   that breaks down?

19         A.   We have -- the case coordinators, they are

20   also involved in training the staff.     And we have the

21   residential supervisors who make sure -- they go to

22   the homes and make sure they meet with the staff and

23   the clients on a daily basis, and we make sure that

24   the staff do all their jobs that they are required to

25   do.    And then we have the direct care staff, the




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1    people that work directly with the clients in the

2    group homes.

3        Q.      Were you a residential supervisor in 2008?

4        A.      Yes.

5        Q.      How many other residential supervises were

6    there at Four J's at that time?

7        A.      There were three of us.

8        Q.      Who were they?

9        A.      We had myself, we had Rosemary, and we had

10   also Kingsley Igonna, yes.

11       Q.      As a residential supervisor, did you have

12   any duties that related to the Beretta Court Home?

13       A.      I go to all the houses.   I go there,

14   sometime I went there for at the staff and the

15   clients in the house working, I go make sure that

16   everything is fine.     Sometime, a lot of time, when

17   they leave and come to the day-hab, I will go back

18   there to make sure the houses are clean very well and

19   all the items for the clients are in proper

20   condition.

21       Q.      If any repairs needed to be made at the

22   houses or anything needed to be fixed, would that be

23   your job?

24       A.      We have a maintenance person who does all

25   our, you know, maintenance.     But if the direct care




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1    staff have anything, any repairs, there is a, there

2    is like a form you fill out for all that is needed in

3    the house so that they can fill it out.     If I am not

4    able to see it, there is a list of things, a form to

5    fill out, to say what needs to be done.     Then I will

6    take it and go to our maintenance person whom I will

7    bring to the house, and he will take care of the

8    repairs.

9          Q.   Would the case staff send that form to you

10   or someone else?

11         A.   They can address it to the office, to the

12   case coordinators or they can send it to me.

13         Q.   If case staff needed keys to the houses, who

14   would they go to, to get the keys?

15         A.   I am the one.   They would come to me to get

16   it.

17         Q.   As far as training new employees when they

18   first came to work at Four J's, did you have any role

19   in that as well?

20         A.   Yes.

21         Q.   What was your role?

22         A.   When they are interviewed, hired, then the

23   new staff will be sent to me.     Then I will introduce

24   the person to the house where we have availability.

25   Then the person will go there, know who the




                                                        001274
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1    clients -- just introduce the new staff to the

2    clients at the home where he or she would work.         Then

3    I will bring her back to the office to meet with the

4    case coordinators and the nurse.

5        Q.   Before taking the new employee to the house,

6    was there any training conducted at the office?

7        A.   Yes.    We do trainings.

8        Q.   What kind of training?

9        A.   We have preemployment training where they

10   are taken through all the things that they are going

11   to do so they will be shown, shown all the things,

12   all the things, all the needs for the clients, all

13   the trainings that we do, they give to the clients,

14   they get it first.     The will come --

15       Q.   Let me stop you just a second.

16                   What are some of the kinds of

17   preemployment training that were given?

18       A.   We talk about the -- like, if a question.

19   We talk about the fire drills.      We talk about all the

20   general care, like, the general hygiene.      All the

21   care that would be given to the clients, we discuss

22   that.

23       Q.   What would case staff do after having been

24   given this training?     What was the next step?

25       A.   The next step, that's when they come to me.




                                                         001275
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1    Then I will go through, like, the schedules we have

2    available.     If they can do it, then I show them what

3    schedule and the house that we have for the schedule.

4    That's when I will take them to the house and show

5    them the clients.       Then they come back to the office

6    to continue the training.

7        Q.      How were the staff assigned to the different

8    houses?     Did you have a role in that?

9        A.      Yes.

10       Q.      How did you decide which staff went to which

11   house?

12       A.      When, when we have a vacancy, I will let the

13   administration know that we need someone to be

14   interviewed.       Then after the interview, the person

15   meet the interview, then they send the person to me.

16   Then I will go through the schedule that we have.         If

17   he or she can do the schedule, that's when I

18   continue.

19       Q.      Who at Four J's was responsible for making

20   sure that the homes had working fire detectors, smoke

21   detectors?

22       A.      The supervisors.

23       Q.      Would you have been one of those

24   supervisors?

25       A.      Yes.




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1           Q.      Were you in that position in 2008?

2           A.      Yes.    In 2008, I would do that.

3           Q.      Did you go to the Beretta Court Home in 2008

4    or sometime before?

5           A.      Yes, I did.

6           Q.      Are you familiar with the layout of the

7    house?

8           A.      Yes, I am.

9           Q.      Okay.    I want to go over some of it with

10   you, if I can.          Let me show you what is Defense

11   Exhibit 71.           It's going to be on that screen in front

12   of you, as well.

13                          Let's start out by, please tell us

14   where the front door to the house was.

15          A.      The front door?     It should be right here

16   (indicating).

17          Q.      And let me just -- let me refer to it for

18   you.        Is this the front door to the house?

19          A.      Yes, sir.     Yes, that would be the front

20   door.

21          Q.      Were there any other doors in the house

22   there that could get you inside or outside the house?

23          A.      Yes, sir.     There was a front door.   Then

24   there is a back door.           There is another door into the

25   garage.




                                                                 001277
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1        Q.     Okay.    Let's start by going to the back

2    door.    Can you show me where the back door was?

3        A.     The back door is straight through the living

4    room.

5        Q.     Would you put it here?

6        A.     Yes, that's right.

7        Q.     Or would you put it more to the right?

8        A.     Let me see.    Just a little, because it is

9    nearer to the kitchen.         So maybe the yellow spot,

10   because it is nearer to the kitchen area.

11       Q.     Would that be the back door (indicating)?

12       A.     Yes.

13       Q.     You told us about a third door, a garage

14   door.    Where would that be?

15       A.     It would be just within the, the master

16   bedroom and the door leading outside, which would be

17   right just around here (indicating).

18       Q.     Is this the door that goes between the house

19   and the garage?

20       A.     Yes.    This one, this is the door that --

21   yeah.    Yes, that's right.

22       Q.     And is this the door that you were talking

23   about that leads from the garage outside?

24       A.     Yes.    Yes, sir.

25       Q.     Would it be okay with you if I put a letter




                                                            001278
                                                              85



1    F for the word front door there?

2        A.   Yes, the front door, yes.   The front door.

3        Q.   And could I put a B for back where you said

4    the back door?

5        A.   Yes, the back door.

6        Q.   Was it the yellow?

7        A.   The yellow.

8        Q.   In 2008, was there a problem with the garage

9    door?

10       A.   No, sir.

11       Q.   Did any of the staff that worked at Beretta

12   Court tell you that the garage door was broken?

13       A.   No, sir.    No.

14       Q.   Was the garage at Beretta Court ever used?

15   Were cars parked there or anything put in the garage?

16       A.   Yeah, cars parked inside.   But in the

17   garage, that's where they have the washing machines

18   and the dryer.   So it was always -- they were able to

19   go into the garage to do that.

20       Q.   Who parked cars in the garage?

21       A.   Staff can park their cars in the garage.

22       Q.   Was that permitted?

23       A.   Yes, sir.

24       Q.   And you said there was a washer, dryer in

25   the garage?




                                                       001279
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1        A.     Yes.

2        Q.     If the side door to the garage leading

3    outside the house was broken, would you expect the

4    staff to tell you that?

5        A.     They would tell me because the -- in the

6    garage, it's a main garage door, and then there is

7    another small door inside the garage that leads

8    outside.

9        Q.     Was there ever a time where you had the

10   staff stop parking in the garage?

11       A.     I didn't stop -- I don't stop the staff to

12   park in the garage.

13       Q.     Was it available for them if they needed to

14   get in the garage?

15       A.     Yes.

16       Q.     You were telling us earlier about the person

17   at Four J's who distributes the keys to the staff.

18   Do you remember that?

19       A.     Sorry?

20       Q.     The keys to the house.

21       A.     I distribute the keys to the house.

22       Q.     Did you give the keys to Beretta Court to

23   the staff who worked there?

24       A.     Yes.

25       Q.     Who worked at Beretta Court in 2008, what




                                                          001280
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1    staff?

2        A.   We had, we had, in 2008 we had Chiaka Irondi

3    that worked there.

4        Q.   Chiaka Irondi?

5        A.   Irondi.

6        Q.   Who else?

7        A.   We had Amuche.

8        Q.   Would that be Ms. Udemezue?

9        A.   Ms. Udemezue.

10                 We also had Clara Nwafor.    N-W-A-F-O-R.

11   We also had Cherry Hicks, who worked there in 2008.

12   And then we had Chima, Chima Anyanwu also worked in

13   2008.

14       Q.   Can you spell that last name for us too?

15       A.   Anyanwu.    A-N-Y-A-N-W-U, Anyanwu.

16       Q.   When these employees began working at

17   Four J's, did you give them copies of keys to Beretta

18   Court?

19       A.   Yes, I did.

20       Q.   How many keys were there for Beretta Court?

21       A.   When a staff starts working, once we confirm

22   that she gets the schedule, then she will get a key

23   so that she will be able to go to work.    So all the

24   staff who worked there had a key.

25       Q.   Did you have a set of the keys to Beretta




                                                       001281
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1    Court?

2        A.   Yes, I do.     I have the set of keys.

3        Q.   How many keys were needed for this house?

4        A.   There would be two keys because the back

5    door had a separate key from the front door.

6        Q.   Was there a medicine cabinet in the kitchen?

7        A.   Yes, sir.

8        Q.   Was that locked or unlocked?

9        A.   It's always locked.     But the key to that

10   medicine, we leave it in the dresser, in the drawer

11   in the kitchen.     But the other keys, the staff will

12   have the other.     They didn't have a key to the

13   medicine box.     They leave it in the dresser for the

14   staff who uses it.

15       Q.   When a new employee came, or an employee

16   came to work at Beretta Court, would you give them a

17   set of two keys, a front and back door?

18       A.   Yes, sir.

19       Q.   Would you give that to each case staff who

20   worked at the house?

21       A.   Each staff will have a key, yes.

22       Q.   Were there any other keys to Beretta Court

23   that were kept elsewhere, either on the property or

24   somewhere else?

25                   MR. SPARKS:   Your Honor, object to




                                                           001282
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1    leading.

2                      THE COURT:     Sustained.

3        Q.     (By Mr. Raval)       Were any other keys to

4    Beretta Court kept by you or kept elsewhere?

5                      MR. SPARKS:     Same objection.

6                      THE COURT:     Overruled.

7        A.     Yes.    I have my own, I have my own key

8    because I have a bunch of key for the houses.            That's

9    where I make copies to give out to the staff.

10                     Then at Beretta Court, because you had

11   the other door, that -- the key is different from the,

12   from the front door, so there is -- at one time, we

13   put the key in case anybody is in a hurry to go

14   through the door but they don't have their own set of

15   key which they go home and come back with.          But for

16   the maintenance guy or anybody who come in and don't

17   have a key, we left the key right on there, on the

18   door leading outside.

19       Q.     (By Mr. Raval)       Was that the key for the

20   back door?

21       A.     Yes, sir.

22       Q.     Where did you leave that in the house?

23       A.     Right on the doorpost, right on the door

24   leading out to the garage.

25       Q.     Looking at Exhibit 71, can you show us where




                                                              001283
                                                                      90



1    you would have left that key?

2        A.     Right here (indicating)?

3        Q.     Yes.    Can you point to us or direct me

4    where --

5        A.     Right on the door leading outside.

6        Q.     Are you saying you put it directly on the

7    door?

8        A.     Yes, sir.    Right on top.   On the door

9    leading outside.

10       Q.     Was the key in the lock or hanging somewhere

11   above?

12       A.     No.    It's hanging above.   Not in the lock.

13       Q.     Did the case staff know the key was there?

14       A.     Every staff should know, yes.

15       Q.     If one of the case staff lost their keys to

16   Beretta Court, who would they go to for a new set of

17   keys?

18       A.     They -- there's a -- the form we fill out

19   for whatever you need, they can fill the form.        But

20   it would still come back to me because I will be the

21   one to make the key to give it back to the staff.           So

22   they will fill out the form for whatever they need,

23   and they send it to the office or they can even call

24   me and let me know they don't have their key.

25       Q.     Did Chiaka Irondi ever fill out a form or




                                                           001284
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1    call you and tell you that she didn't have a set of

2    keys to this house?

3        A.     I don't remember she ask me -- ask -- told

4    me that she didn't have a key to the house.

5        Q.     Did Amuche Udemezue ever call you or fill

6    out a form and let you know that she didn't have a

7    set of keys to this house?

8        A.     No, sir.   No.

9        Q.     If they had asked you for another set of

10   keys to the house, would you give it to them?

11       A.     Yes, I will.

12                   MR. RAVAL:     Your Honor, we pass the

13   witness.

14                   THE COURT:     Mr. Thweatt?

15                   MR. THWEATT:     Thank you, Your Honor.

16                         CROSS-EXAMINATION

17   BY MR. THWEATT:

18       Q.     Sir, when you issue keys to employees, do

19   you have them sign something acknowledging that they

20   have received a key?

21       A.     No, sir.

22       Q.     So we don't have any documentation from

23   Four J's that tells us that you actually did

24   administer the keys like you are saying you did,

25   right?




                                                          001285
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1        A.    No, we don't fill a form.

2        Q.    And in your business at Four J's, if it's

3    not documented that means it's not done, right?

4        A.    Yeah, we document.

5        Q.    If it's not documented, though, that means

6    it's not done, right?      Isn't that the standard there

7    at --

8        A.    For services given, if we don't document

9    services given, then it's not done.

10       Q.    Let me show you Plaintiff's Exhibit

11   Number 37.   All right.    I am showing you Plaintiff's

12   Exhibit 37, sir.

13       A.    Yes.

14       Q.    This is the residential staff information.

15   You are familiar with this document, are you not?

16       A.    I am familiar.

17       Q.    If you look on page 2 of Plaintiff's Exhibit

18   Number 37, in quotes there it says, "If it's not

19   documented, it's not done."      Right?   That's what that

20   says there, isn't it?

21       A.    Yes.   All the services given, if it's not

22   documented, then it's not done.

23       Q.    All right.    And you don't have any

24   documentation that you gave keys to these employees,

25   do you?




                                                          001286
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1        A.    No, I don't, I don't have that.

2        Q.    Let me show you Plaintiff's Exhibit

3    Number 82.   You said there was no problem with this

4    garage door, right?

5        A.    No, there was no problem with it.

6        Q.    This is a picture taken by the Houston Fire

7    Department after the fire.      I want to focus your

8    attention on the garage door.        You see where I am

9    pointing my pen on this picture.        This is page 82 out

10   of Plaintiff's Exhibit Number 26.        Do you see that

11   piece of wood right there leaning up against the

12   garage?   Do you see that?

13       A.    Yeah, I see that.

14       Q.    Let me show you the bottom picture on

15   page 82 of Plaintiff's Exhibit Number 86.        This is

16   another view.     Do you see that?     This is the same

17   piece of wood, isn't it?

18       A.    I don't know if it's wood, but I see what

19   you are showing me.     I see it.

20       Q.    Yeah.    You see the garage frame where the

21   wheels on the garage would normally ride up and down?

22   Do you see that there?      Do you see that there, sir,

23   on the picture?

24       A.    Yeah, I see it.

25       Q.    Do you see how low the garage is hanging in




                                                            001287
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1    this picture, as if it were propped up by this wood?

2    Do you see that?

3           A.      Yeah, I see what you are showing me.

4           Q.      And let's back out.    Just look at the

5    garage.        I think your testimony was that the staff

6    parked their cars in this garage?

7           A.      Yes, sir.

8           Q.      You think a staff, on the night of the fire,

9    would have been able to park their car in that garage

10   with all that debris and all those boxes and all

11   those household items in there; that's your

12   testimony?

13          A.      Yes.   We park cars in there.

14          Q.      Let's take a look at another picture from

15   Plaintiff's Exhibit 26.          This is page 95 of that

16   exhibit.        Kind of a different view.      Page 95 of

17   Plaintiff's Exhibit 26, you can also see that piece

18   of wood that's propped up against that garage, can't

19   you?        Do you see that?

20          A.      I see it.   Yes, I see it.

21          Q.      Here's another look at it, on Page 95 of

22   Plaintiff's Exhibit Number 26.          Do you see that,

23   there?

24          A.      Yeah, I see it.    I see what you are showing

25   me.




                                                                 001288
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1                     MR. THWEATT:     Pass the witness.

2                     THE COURT:     Mr. Sparks.

3                     MR. SPARKS:     Just a couple questions,

4    Your Honor.

5                          CROSS-EXAMINATION

6    BY MR. SPARKS:

7        Q.   Mr. Inya, how are you today, sir?

8        A.   Fine, thank you.

9        Q.   Just a couple questions.        You stated that

10   the medicine box key wherein the medicine for all the

11   clients who resided at the Beretta Court was kept in

12   a drawer; is that correct?

13       A.   Yes.

14       Q.   That wasn't given to the staff members?

15       A.   No.     The key, it's in the drawer in the

16   kitchen for staff members to use it.

17       Q.   So the medicine box key was in a drawer?

18       A.   Yes.     In a drawer.

19       Q.   That wasn't given to the staff members?

20       A.   No.     They don't go home with it.     They don't

21   take it home.

22       Q.   So that stayed in the drawer?

23       A.   It stays in the drawer, yes.

24       Q.   The extra key that you said was to the back

25   door, what secured it?




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1        A.      What?

2        Q.      What secured it?

3        A.      What secured it?

4        Q.      Yeah.     What secured it?

5        A.      Oh, it's in a, like a chain, like in a

6    chain.

7        Q.      Yes, sir.

8        A.      You put it in a chain and then hung up on

9    the door.

10       Q.      Okay.     So what was the chain hanging on?

11       A.      It is a nail.

12       Q.      A nail?

13       A.      A nail on top of the door, right on top

14   where, you know, they can reach it.

15       Q.      Okay.     Let me ask you probably a real

16   obvious question.        Why didn't you have the front door

17   and the back door being on the same key?

18       A.      No, the staff have their own.     Because I

19   have mine, the staff who work there had their own.

20   But I put it there in case a maintenance guy, someone

21   goes in there when there is no staff in the house, so

22   they can have access to go to the yard.

23       Q.      That I understand.     But how come your front

24   door key is not the same as your back door key?           Why

25   did you have separate keys?




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1           A.   That's how we had the door, they had two

2    different keys.

3           Q.   So at all the properties that you supervise,

4    if you have to go into the front door you use one

5    key, to go out the back door you have to use another

6    key?

7           A.   Yes.    Most of them are like that.

8           Q.   Most of them are like that?

9           A.   Yes, sir.

10          Q.   How many of them have deadbolt locks?

11          A.   Right now, we don't have.

12          Q.   No, no, not right now.     I'm sorry.   Let me

13   rephrase my question.

14          A.   Yes.

15          Q.   2008, how many had deadbolt locks?

16          A.   I know Beretta Court had it.     There were two

17   other houses that had deadbolt.

18          Q.   What were their addresses?

19          A.   There was one on, at 16214 Sierra Grande.

20          Q.   Sierra Grande?

21          A.   Yes.

22          Q.   Okay.

23          A.   And 16014 Sierra Grande.

24          Q.   And those properties, did they have

25   individuals there who were wheelchair bound?




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1        A.   There is 16014, yes, sir, there is.

2        Q.   Okay.     So in addition to Beretta Court, you

3    guys had another property that you had an individual

4    there who was in a wheelchair and you also had a

5    deadbolt lock on it, correct?

6        A.   Yes.

7                     MR. SPARKS:    Pass the witness, Judge.

8                     THE COURT:    Mr. Raval?

9                     MR. RAVAL:    Yes, Your Honor.

10                       REDIRECT EXAMINATION

11   BY MR. RAVAL:

12       Q.   Mr. Ogbonna, you were asked a question about

13   if Four J's doesn't document it, it's not done.          Is

14   that correct?

15       A.   Yes.

16       Q.   What does that refer to?

17       A.   The services given.       All the services, like

18   hygiene, giving the hygiene, feeding, assisting with

19   medication and all the cleaning of the items.       If you

20   do not document that those were given, then we

21   consider that you didn't do it.

22       Q.   Is providing keys to staff a service?

23       A.   No, sir.     It's not a service.    It's just

24   what we give to staff so they will be able to go to

25   work when they are supposed to be there.




                                                          001292
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1                     MR. RAVAL:   Pass the witness.

2                     THE COURT:   Mr. Thweatt.

3                         RECROSS-EXAMINATION

4    BY MR. THWEATT:

5        Q.   Let me make sure I understand where this key

6    you say was on the door.      You said there was a key to

7    the back door in the Beretta Court house.         Where

8    exactly was it?

9        A.   Right on top, the doorpost.

10       Q.   And there was a nail, you said it hung down?

11       A.   Yes.     Just little chain that you put up

12   there.

13       Q.   There was a chain?

14       A.   Yes, sir.

15       Q.   Okay.     Let me show you Page 70 of

16   Plaintiff's Exhibit Number 26.      Is that the back door

17   you are talking about, at the Beretta Court house?

18       A.   I don't remember it very well.      But if this

19   is Beretta Court, there is only one back door from

20   the living room.

21       Q.   Are you saying that there was a chain that

22   may have been hanging in some other house, other than

23   the Beretta Court house?

24       A.   No.

25       Q.   Is that what you are saying?




                                                               001293
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1        A.      No.    What I am saying, at Beretta Court we

2    put the key because the, because the door has a

3    deadbolt.

4        Q.      Right.

5        A.      But other houses we have, we don't have

6    deadbolt.

7        Q.      At the Beretta Court house, you said --

8    there was a house on Beretta Court.

9        A.      Right.

10       Q.      The house on Beretta Court, you said that

11   there was a key attached to a chain that hung down,

12   right?

13       A.      Yes.

14       Q.      Is this the door, looking at page 70 of

15   Plaintiff's Exhibit Number 26?

16       A.      Yes.

17       Q.      Is that the door that's in the back of the

18   Beretta Court Home?

19       A.      Yes.

20       Q.      Can you see a chain there?

21       A.      No.    It would be right up on the doorpost,

22   right up on the door.       Not halfway.

23       Q.      Let me show you another picture.    Page 69 of

24   Plaintiff's Exhibit Number 26.       Do you see any chains

25   hanging down, holding a key on it, on this picture?




                                                           001294
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1                       Can you see a chain there, sir?

2        A.     I am not seeing it.

3        Q.     We see a chain right here, what you use to

4    lock the door with, right?

5        A.     No, not that one.

6        Q.     Yeah.

7        A.     But this chain is not halfway on the door.

8    It's all the way up.

9        Q.     How long was the chain?

10       A.     The chain was there until we had the

11   incident of one of the clients trying to use it to

12   get out of the house.       So we put it also in the

13   drawer.

14       Q.     Well, was the chain there on September 4,

15   2008?

16       A.     The chain would be at that or in the drawer,

17   so that it was where the staff would know where to

18   find it.

19       Q.     So you don't know whether there was a chain

20   there or not on September 4, 2008.       Is that what you

21   are saying?

22       A.     I'm talking about the key.     The key was

23   there so if we have someone coming to do a job in the

24   yard, so they will have access to go the yard.

25       Q.     Well, you initially said it was on top of




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1    the door.

2        A.      Yes.

3        Q.      And now you are saying it was in the drawer,

4    right?

5        A.      No.    It was -- they always had it on top of

6    the door or in the drawer.       So staff know where to

7    find it.

8        Q.      They can't always have it in two places at

9    the same time, can they?       It's either got to be on

10   top of the door or inside of a drawer in the house,

11   right?

12       A.      Yes.

13       Q.      Which was it?

14       A.      It would be on top of the door or in the

15   drawer, where staff will know where to find it.

16       Q.      If they had it at all, right?

17       A.      They all had their own key.     This was an

18   extra key.

19       Q.      Of course, there is no documentation that

20   they were ever issues this key, is there?

21       A.      It wasn't like -- we didn't ask them to pay

22   for the keys.      It was just to give them so they will

23   be able to go in and out of the house.

24       Q.      There is no documentation of you ever giving

25   any of these caregivers in the house a key, is there?




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1        A.   We didn't make documentation.        We don't sign

2    for the key.     Just for them to be able to go in and

3    be able to do their work.

4        Q.   And if it's not documented, it's not done,

5    is it?

6        A.   For the services, sir.

7        Q.   Right.

8                     MR. THWEATT:     Pass the witness.

9                     THE COURT:     Mr. Sparks.

10                    MR. SPARKS:     Just briefly, Judge.

11                        RECROSS-EXAMINATION

12   BY MR. SPARKS:

13       Q.   Sir, isn't it true that the reason why the

14   deadbolt lock was put there was to keep Esperanza

15   Arzola in the house because she was eloping and

16   becoming a problem?

17       A.   That was one of the reasons.

18       Q.   That was one of the reasons?

19                    And that's the same person that was also

20   getting access to the key that you said was hanging on

21   a nail above the door that had the chain on it?         Was

22   she the person you were talking about when you told

23   the jury that it might have been moved to the drawer

24   because she had access to that too?

25       A.   We try not to let her get out of the house.




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1          Q.   She was an elopement problem, right?

2          A.   Yes.

3          Q.   That was one of the reasons you put the

4    deadbolt on there, right?

5          A.   That was the reason why we had the deadbolt

6    and we left it.

7          Q.   My last question to you, sir, was this:

8    Were you aware of whether or not Jenny Wagner or

9    Tanya James could have had access to that key to get

10   out the door, if they needed to, in an emergency?

11         A.   I don't know if Tanya would use the key to

12   go.    She never tried it, so we never had any record

13   of that with Tanya.

14         Q.   Same about Jenny, right?

15         A.   No.    Jenny, yeah.

16         Q.   So either one of those persons getting out

17   that door in the case of emergency was not a concern

18   to you when you put that deadbolt on there, was it?

19         A.   No, because --

20         Q.   Your only concern was to keep Esperanza in?

21         A.   With the staff trained, we expected -- you

22   know, we were sure that the staff would be able to

23   have access.      We didn't expect Jenny to elope through

24   the door --

25                     MR. THWEATT:   Pass the witness.




                                                          001298
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1                        THE COURT:     Let him finish his answer.

2                        MR. THWEATT:     I'm sorry.

3                        THE COURT:     Are you finished?

4           A.      We didn't expect Jenny to get out through

5    the door.

6                        MR. SPARKS:     Pass the witness.

7                        THE COURT:     Mr. Raval.

8                        MR. RAVAL:     Pass the witness, Your

9    Honor.

10                       THE COURT:     Any reason this witness

11   cannot be excused?

12                       MR. RAVAL:     No, your Honor.

13                       MR. THWEATT:     No, Your Honor.

14                       MR. SPARKS:     No, Your Honor.

15                       THE COURT:     Thank you for your time,

16   sir.        You are excused.

17                      (The witness was excused.)

18                       THE COURT:     Call your next witness.

19                       MR. PLUMMER:     Your Honor, at this time

20   we would call Ms. Anthonia Uduma.

21                       THE COURT:     Ms. Uduma, you are still

22   under oath.        Have a seat, please.

23                       THE WITNESS:     Thank you.

24                       THE COURT:     You may proceed.

25                       MR. PLUMMER:     Thank you, Your Honor.




                                                                 001299
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1                            ANTHONIA UDUMA,

2    having been previously placed under oath, testified as

3    follows:

4                           DIRECT EXAMINATION

5    BY MR. PLUMMER:

6        Q.     Ms. Uduma, you testified yesterday.     I want

7    to follow up on that today.      Do you understand that?

8        A.     Yes.

9        Q.     If you would, and your voice is awfully

10   soft, if you would talk into the microphone, I would

11   appreciate it, okay?

12       A.     Yes, sir.

13       Q.     Tell us a little about your educational

14   background.

15       A.     I have degree in accounting, which is

16   undergraduate degree, and I have master's degree in

17   accounting also.

18       Q.     Where did you get your undergraduate degree,

19   and where did you get your master's degree?

20       A.     Texas Southern University.

21       Q.     When?

22       A.     I graduated my -- under my first degree,

23   1986, May 1986.

24       Q.     Okay.   And --

25       A.     And my master's degree, I believe it was May




                                                          001300
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1    1994.

2        Q.   Okay.   Now did you work during college when

3    you were at Texas Southern, or did you just go

4    straight through school?

5        A.   I went straight through the school for my

6    undergraduate.   But I worked for my master's degree.

7        Q.   What kind of work did you do at that time?

8        A.   I was a social worker with the Texas

9    Department of Human Services.

10       Q.   After you graduated with your master's

11   degree, what kind of employment did you undertake?

12       A.   I took the social service -- it was called

13   eligibility specialist, so social service work.

14       Q.   Social services what?

15       A.   Eligibility specialist is what it was called

16   by the Texas Department of Human Services.

17       Q.   Okay.   The title of the position was Social

18   Service Eligibility --

19       A.   Specialist.

20       Q.   Specialist.

21       A.   Yes.

22       Q.   And what did you do in that position?

23       A.   We determined the eligibility of the people

24   for AFDC, food stamp and Medicaid.

25       Q.   Okay.   And you did that for how long in that




                                                       001301
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1    position?

2        A.      I did, I did that job for two years.     And

3    then got a promotion to Eligibility Specialist Two.

4    Did that one for two years, and then became a Social

5    Service Supervisor in the same department.

6        Q.      Now, when you had those three positions, up

7    to supervisor, did the department you had have a host

8    of regulations that you had to follow in doing your

9    eligibility work for potential clients?

10       A.      Yes.    When I was working with the State, I

11   learn that for you to keep your job you have to

12   follow every steps of the rules and regulations.

13       Q.      Okay.

14       A.      Even in making determination on who is

15   eligible for Medicaid, who is eligible for food stamp

16   and who is eligible for AFDC.       You have to follow the

17   rules and regulations.

18       Q.      And the guidelines?

19       A.      And the guidelines, because the State will

20   make sure that you follow it.

21       Q.      Okay.   After you became a Social Service

22   Eligibility Supervisor, did you continue working with

23   the State of Texas?

24       A.      Yes.    I was there for nine and a half years.

25       Q.      Okay.   And what were the other positions




                                                          001302
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1    that you had?

2        A.      I was Acting Program Director.

3        Q.      Okay.   For what program?

4        A.      For the same program.

5        Q.      For the same department?

6        A.      For the same department.

7        Q.      Okay.   When did you leave that employment?

8        A.      I left that employment in May 1997.

9        Q.      Okay.   Is that when you started Four J's?

10       A.      That's when I started Four J's.

11       Q.      And is it fair to say that since that time

12   up to the present you have operated and run Four J's

13   Community Service Center as its Chief Executive

14   Officer and as its Program Director?      Is that right?

15       A.      That's correct.

16       Q.      Okay.   If you would, Ms. Uduma, tell us what

17   the responsibilities are of the Program Director for

18   Four J's.

19       A.      One of the -- well, we have different

20   responsibilities.      And some of them, we are making

21   sure that the employees are trained, making sure that

22   the agency complies with all the rules and

23   regulations, which is called Community-based Standard

24   by Texas Department -- it was then Texas Department

25   of Mental Health and Mental Retardation.      So part of




                                                         001303
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1    my job was to make sure that we comply with every

2    rule.    And then to make sure that when the State

3    comes out to do an audit, that we have every document

4    to present to them, because we have audit once a year

5    that the State come and review the whole program.

6    They go to the houses to make sure the houses are --

7    meet the health and safety of the clients.      So they

8    come to the office and review the documents, they

9    interview employees.

10                    And one of my job was to make sure --

11   part of the reason why I get involved in training is,

12   when they go to the houses and they interview the

13   staff, if the staff by any means did not answer

14   questions regarding -- relating to every client, we

15   get cited, which could lead to termination of

16   contract.     So to make sure that things are done, I

17   usually have every other week meetings with the case

18   managers and --

19       Q.      Slow down a second.   I didn't follow.   You

20   usually have what, now?

21       A.      To make sure that we following all the rules

22   and regulations, we have monthly meetings with all

23   the employees where I give them in-services myself.

24   The psychologist will do their own, the case managers

25   will do their own.     Different people will come in and




                                                          001304
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1    do it.   Then --

2        Q.    Before we go beyond that, let me understand

3    this in-service, this monthly in-service.     You say

4    the psychologist comes in and does part of the

5    in-service; is that right?

6        A.    That's correct.

7        Q.    And what is the psychologist's role in that

8    regard, and what is he trying to do with your staff

9    when that happens?

10       A.    Well, we contract the psychologist to come

11   and look at the, the documents of every client.     The

12   case managers give the documents to the psychologist.

13   And the role of the psychologist is to train the

14   staff to prevent any incident that would lead to that

15   behavior as listed on the behavior therapy plan.

16       Q.    Okay.    So if you have a client who has --

17   who is bipolar and schizophrenic, are you saying that

18   the psychologist's role is to train the staff as to

19   how to deal with a, a client of that sort?

20       A.    That's correct.    And part of all the

21   responsibility that I usually do is have an advisory

22   committee meeting.     That one, I host that one.

23   That's part of the requirement by the State of Texas.

24   Where we invite all the guardians, all the family

25   members, including the clients, to have a meeting.




                                                         001305
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1    And in that meeting, they will tell us where we are

2    lacking, if there is anything the agency is lacking.

3    And then in that meeting, we look at the staffing, we

4    look at the personnel record, we look at abuse and

5    neglect.     We look to see where there has been any

6    complaints, any consumer right complaints.     We

7    discuss it, and then we staff it.     We decide what we

8    need to do to prevent this from ever happening again,

9    if there is any problem.     We give the families option

10   to let us know if there is any area we need to

11   improve.

12       Q.     Okay.   And in addition to the psychologist,

13   do you have other professionals who also attend the

14   in-services periodically to talk about other issues?

15       A.     Yes.

16       Q.     What kind of other professionals do you have

17   coming in?

18       A.     I have -- I invite them, I personally invite

19   them, if I am -- we work with the City of Houston

20   that comes almost every -- twice a year to do the

21   actual fire drill using the fake fire.     We also

22   invite the people --

23       Q.     Let me stop you on that.   Did you do this

24   before and including in 2008?

25       A.     Yes, I did.




                                                          001306
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1        Q.   Okay.

2        A.   And we invited the Adult Protective Services

3    to come and train the staff, this was just once a

4    year, to train them on how to prevent abuse and

5    negligence, to make them aware what is considered

6    physical abuse, verbal abuse, neglect and

7    exploitation.

8        Q.   Okay.   Physical abuse, verbal abuse,

9    negligence and exploitation, are those terms that are

10   used within the guidelines that outline the rights of

11   the individual clients?

12       A.   That's correct.   Because when the State

13   comes to do our annual audit, they are going to

14   require me to produce all these documents.

15       Q.   Okay.   And verbal abuse is prohibited; is

16   that correct?

17       A.   Yes.

18       Q.   Obviously, physical abuse is prohibited?

19       A.   Yes.

20       Q.   And that's all part of the rights of the

21   client; is that correct?

22       A.   That's correct.

23       Q.   If you would, describe for us generally the

24   rights of the client within the context of this

25   program, the CR -- the HCS program.




                                                         001307
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1        A.   It has the rights in that standard.

2        Q.   Okay.

3        A.   So they have the right to live in a safe and

4    secure environment.     They have the right to choose

5    and transfer to another provider if they are not

6    happy with the agency.     They have the right to be

7    treated like normal human being.

8        Q.   Even if they have disabilities?

9        A.   Even if they have disability.     Back then,

10   they had what they call age appropriate.     Even if the

11   client is profound, they still will not allow you to

12   put something like a bib or something that would make

13   it look like a child.     They are still considered an

14   adult, and you still have to go by that rights.        And

15   when they come to review the audit for the year, they

16   have to go down all the list to make sure we did not

17   violate any of their rights.

18       Q.   Okay.   What about personal rights, like the

19   right to be free from intrusions, personal

20   intrusions?

21       A.   Yes.

22       Q.   Okay.   Explain that to us.

23       A.   That standard, practically said that the

24   house where they belong, the reason why they left

25   institution is to come in the community and be




                                                        001308
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1    normalized --

2        Q.     Okay.

3        A.     -- and part of their right --

4        Q.     Let me stop you a second.

5        A.     Okay.

6        Q.     You said the reason why they left an

7    institution.       What do you mean?     What kind of

8    institution?

9        A.     Most of them came from state -- it used to

10   be state schools.       But now the name is state

11   supported living centers.       So when they live there

12   for so many years, the IDT members would decide which

13   client have managed their behaviors appropriately,

14   which client have not had any episode of behaviors.

15   And then they will recommend that client to receive a

16   slot because they have to receive a slot in order to

17   come to the community.       They will recommend it to

18   DADS.    When their name comes up, they will staff it

19   and review it to make sure that the client have not

20   had any episode of behaviors.          It will just state in

21   their history.       Then they will recommend the client

22   for placement.

23                      After that, the team from the state

24   school will come and look at the houses.          They will

25   visit different providers.       They will interview the




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1    case managers.     They will look at the other clients

2    that live in the house.      Then they will determine

3    whether this client is suitable for that house.

4        Q.     Okay.   All right.     So that's part of the

5    process that's gone through before a client gets

6    placed in a particular house?

7        A.     That's correct.      And once a client choose a

8    company, it's a zero reject.

9        Q.     You mean -- when you say zero reject, you

10   mean you all can't say no to a particular client?

11       A.     We cannot say no.      Otherwise, we will lose

12   the contract.

13       Q.     That's part of the agreement you have --

14       A.     Yes.

15       Q.     -- with the --

16       A.     It's in the standard.      Yes.

17       Q.     Okay.   Now, the in-service -- you mentioned

18   you had a fire marshal come, a Houston fire marshal,

19   come on a semi-annual basis to in-service your staff

20   on fire safety; is that right?

21       A.     That's correct.

22       Q.     And you did this 2008 and before; is that

23   correct?

24       A.     That's correct.

25       Q.     And I think you started to say something




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1    about a simulated fire.     Would you tell us about that

2    circumstance and how that was addressed?

3        A.   Okay.     Before I go into that, I just want

4    you to know that the standard requires six fire

5    drills in a year.     But Four J's did twelve.

6        Q.   That's six fire drills in a year per

7    residence?

8        A.   Per residence.

9        Q.   And you all did twelve?

10       A.   Twelve.     And even in some instance, we did

11   more than 12 because if a new employee comes in, that

12   new employee will have to go through the fire drill.

13       Q.   Okay.     Tell us about the in-service with the

14   fire marshal.

15       A.   What happened when we had fire marshal to

16   come in, in one of the in-services, he brought us a

17   bunch of posters that he give us to take and put in

18   our group homes.     And he train the staff how to use

19   fire extinguisher, and he train them on different

20   types of fire.     I can't remember all of them.

21       Q.   You mean things like grease fires versus

22   electrical fires --

23       A.   Yes, yes.     And which one you can use the

24   fire extinguisher and which one you cannot use it.

25   And then he use a trash can to make a fake fire in




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1    one of the trainings, and show them how to point the

2    fire extinguisher.

3                        Every year we have to bring all the fire

4    extinguishers from the group home and take it to a

5    company that will check them to make sure that they

6    are -- because when the State comes for audit, they

7    have to make sure that the fire extinguisher is full.

8        Q.      Do you recall whether Amuche ever attended

9    one of those sessions where the fire marshal was

10   there?

11       A.      Amuche was one of the employees that never

12   missed any training.         She was there.   She was a good

13   employee.     I mean, she did what we told her to do.

14       Q.      Okay.    Okay.    So she attended all the

15   trainings and all the training sessions?

16       A.      She did.

17       Q.      Tell us about the fire drills.       What is your

18   understanding of what you had in place for fire

19   drills at the residences?

20       A.      The way we had it set up is, each month,

21   they come to the office for the in-service.          We

22   discuss about the fire drill.         We discuss about the

23   special needs.       The case managers will come and talk

24   about the emergency evacuation plan.          Every month we

25   will do that.




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1                       Then the supervisors will go to the

2    houses, even as late as 12:00 midnight, to observe the

3    staff to do it, because they do it with the staff to

4    make sure that it is done right.       Because the reason

5    that we did that or I set it that way, when the State

6    walks into the house, what they usually do, they will

7    push the smoke alarm and see the reaction of the

8    clients.    If they don't run, it means it was never

9    done.    But in most cases, they will push it and the

10   clients in the house will start running.       So they

11   don't just look at the paper.       They have to go and

12   observe it and interview the clients and the staff.

13       Q.     And this was done across the board for all

14   group homes?

15       A.     Yes.    That's part of the requirement.

16       Q.     Including Beretta Court?

17       A.     Yes, sir.

18       Q.     And it was documented; is that correct?

19       A.     It was documented.

20       Q.     Okay.    What other training were provided to

21   staff members about other procedures, dietary

22   procedures, handling clients with different kinds of

23   health needs?

24       A.     Well, when an employee is hired, I have, I

25   got a seven set of videos where the employee will




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1    have to go through that orientation.     In those set of

2    videos, it is included how to talk to people with

3    mental retardation, how to transfer them --

4        Q.   When you say transfer them, what do you

5    mean?

6        A.   How to -- for those that are wheelchair

7    bound, how to lift them up from bed to wheelchair or

8    wheelchair to bed.

9        Q.   Okay.

10       A.   How to -- it talked about how to bathe them.

11       Q.   How to bathe them?

12       A.   Yes.    Bathe them.   How to take their -- I

13   mean, personal care.     It's different topics.   I'm

14   sorry.   I can't remember all the topics.    But they

15   have to go through that section and watch the videos.

16                    The reason we did that, by the time they

17   finish watching the videos, they already have idea

18   what to do.     Then they go to the case managers after

19   they have been assigned, and then they will

20   reemphasize what they have seen in the videos.

21       Q.   You mean they go to the home or the case

22   manager at the home where they will be working, or is

23   this at the main office?

24       A.   What they usually do, when they hire them

25   and they go through all that videos, and the




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1    supervisor of the personnel talk to them to make sure

2    that they are knowledgeable, then the supervisor of

3    personnel will call the supervisor, the residential

4    supervisor, to tell them this person is ready.

5                     Then the residential supervisor, which

6    is Inya, will meet with them and assign them a

7    schedule and take them to the house.     And then they

8    will come back to the office for, for the mention --

9    it's about not usually done in one day.     They will

10   come back to continue their in-services.

11                    Then after the in-services with the case

12   managers, they will then go back again to the house to

13   shadow with another tenured staff for two days.

14       Q.   To shadow with another staff?

15       A.   Yes.    For two days.

16       Q.   The purpose of that is to, to have the other

17   staff orient them for that particular house and those

18   particular clients.     Is that fair statement?

19       A.   That's correct, sir.

20       Q.   Okay.

21       A.   In those two days, the staff -- the

22   supervisor will meet them there to observe the new

23   staff through fire drills, practice the emergency

24   evacuation plan, sit with the new staff to train them

25   on the paperwork, on how to do everything.




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1                     Then sometimes when they are new when

2    they do fire drill, it would take them longer than

3    three minutes.     But we make them keep redoing it so

4    that they will get comfortable on how to evacuate

5    clients in case of any emergency.

6        Q.   In a shorter period of time?

7        A.   Yes.

8        Q.   Now, tell me and tell the jury a little bit

9    about the philosophy the HCS Program as it pertains

10   to the disabled.

11       A.   The philosophy behind it is just to allow --

12   give them the opportunity to come to the community

13   and live as normal, normal, regular people.

14       Q.   As much as possible?

15       A.   As much as possible.     And in the community,

16   they don't even allow the provider to hang, like,

17   posters or paperwork, because they don't want it look

18   like an institution.

19                    So way back then, the clients are the

20   one that -- I mean, the State requires the company to

21   make sure that all the training in-services are done.

22   And the reason is this:     Even before the client comes,

23   the company will rent a house.     They will rent a house

24   not knowing which client going to go there.     And the

25   intention of renting the house is to give the IDT




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1    members different options of different houses to

2    choose.

3        Q.     Okay.     Now, you said that the regulations

4    don't permit posting a lot of signs in the house, and

5    that's to make it, I think I understood you to say,

6    make it -- make it look less like an institutional

7    setting.

8        A.     That is correct.

9        Q.     Is it fair to say -- and I noticed on one of

10   the exhibits that were posted up, it says, "Whose

11   house is this?"       What is meant by that question,

12   "Whose house is this?"

13       A.     The "Whose house is this," you may not find

14   it with another provider.       It was a documentation

15   that one of my case managers designed to just help

16   her train the staff to understand this is the

17   client's house.       You don't go there and force them to

18   do anything because nobody will come to your house to

19   force you to do anything.

20       Q.     So you want to make it as much like their

21   home as humanly possible?

22       A.     That's, that's what it is.

23       Q.     Okay.     It's not a prison or anything of that

24   sort; is that correct?

25       A.     No.     It's their house.




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1        Q.      Okay.

2        A.      Yes.

3        Q.      How do you -- how did you train the staff to

4    deal with conflicts among residents?       How is that

5    dealt with?

6        A.      If there is any conflict between any of the

7    clients, they usually will report it to the case

8    managers, who will call IDT meeting.

9        Q.      Who would call what?

10       A.      The IDT -- the case manager will call IDT

11   meeting.

12       Q.      The IDT is the Interdisciplinary Team

13   meeting?

14       A.      Yes.    They make all the decisions.   And part

15   of the reason they don't allow program directors to

16   be a member is to avoid them influencing the team's

17   decision.     So we not allowed to even participate in

18   that meeting.

19       Q.      Okay.

20       A.      So --

21       Q.      And if there is a conflict, is that the type

22   of thing that's documented somewhere?

23       A.      Yes.

24       Q.      Okay.

25       A.      If there is a conflict, the direct staff




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1    will do an incident report to let the case manager

2    know there was a problem here.      Then the case manager

3    will staff it to see how they are going to handle it.

4    Do they need to move the client to a different house,

5    or the psychologist will get involved if it's a

6    client with behavior therapy plan.      And the

7    psychologist will be the one to make that

8    determination whether they need to address that or

9    not.

10          Q.   That's where that determination comes from

11   about staffing and how many staff; is that correct?

12          A.   Yes, sir.

13          Q.   It's part of that Interdisciplinary Team

14   evaluation; is that correct?

15          A.   That's correct.

16          Q.   Okay.   And if the psychologist or the team

17   determines that there needs to be two people in a

18   particular group home, that's what is done.       Is that

19   a fair statement?

20          A.   That's correct.   Also, that determination

21   will be made either by the state school or by MHMR

22   before they place the client.

23          Q.   Okay.   Let me understand this.   MHMR or the

24   state school has already done an evaluation of the

25   client; is that correct?




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1        A.   That's correct.

2        Q.   And before they place a client in a

3    particular group home, they have already determined

4    what the required level of staffing is.      Is that what

5    you are telling us?

6        A.   That's correct.     And state school will not

7    release a client who still have behaviors going on.

8    So they will release them only if it becomes a

9    history, maybe they haven't had any episode for about

10   two years or three years or longer than that.

11       Q.   Okay.     When you say they won't release

12   anybody who has behaviors going on, you don't mean

13   that the client has been cured of their bipolar

14   disease or their schizophrenia, do you?

15       A.   No.     That's not what I mean.   What I mean is

16   that they have tried with different medications and

17   the behavior therapy plan, they have kind of

18   controlled and it is working with the client.        That's

19   what I mean.

20       Q.   If there were an incident at the Beretta

21   Court house where any of the clients harmed any other

22   client, was that the kind of thing that had to be

23   documented?

24       A.   Oh, yes.

25       Q.   Was that the kind of thing that would have




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1    been conferenced and addressed?

2        A.   Yes.    And the staff would have notified the

3    psychologist because, on the behavior therapy plan,

4    it gives you listed how to deal with any aggression.

5    But the staff supposed to call the psychologist to

6    let the psychologist know what happened.

7        Q.   So it's not a matter of just writing out a

8    note and turning in a form, the staff is supposed to

9    pick up the phone and call the psychologist.     Is that

10   what you are saying?

11       A.   Yes, sir.     If you look at the behavior

12   therapy plan, it gives you steps to go.

13       Q.   Okay.

14       A.   The final step, you call the psychologist.

15   And the case manager and the supervisors.

16       Q.   Would that also apply to health issues and

17   the nurse?

18       A.   If there is any health -- the way the

19   program standard goes, if there is any health issues

20   they have to notify the nurse first --

21       Q.   Okay.

22       A.   -- before the case manager.     And if it's a

23   life-threatening, they are trained to call 911.      And

24   then when they have the opportunity to call the

25   nurse, they will call the nurse and then notify the




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1    case manager, because the case manager is the one

2    that is going to notify the parents or the guardians.

3        Q.    Okay.    In 2007 and 2008, was there ever any

4    report of conflicts between the clients at Beretta

5    Court?

6        A.    No.     They did not have any conflict.

7        Q.    Was there ever any report of any aggression

8    by one client against any other client in that house?

9        A.    No.

10       Q.    Any reports of aggression toward Jenny

11   Wagner?

12       A.    No.

13       Q.    Any reports of aggression toward Tanya

14   James?

15       A.    No.

16       Q.    Any reports of conflicts between Elisha

17   Campbell and Esperanza Arzola?

18       A.    No.

19       Q.    Okay.    Were there any reports out of Beretta

20   Court by the staff of any assaults or conflicts

21   between Amuche and any of the clients?

22       A.    No.

23       Q.    So when Jenny Wagner -- Jenny Wagner has

24   been at Beretta Court since 2002; is that correct?

25       A.    That's correct.




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1        Q.      Okay.    And Esperanza, do you recall when

2    Esperanza Arzola started staying at Beretta Court,

3    approximately?

4        A.      I believe it was in 2008 or so.

5        Q.      Okay.    And when did Amuche start working at

6    Beretta Court, do you recall?

7        A.      From what I was told, she started working

8    there in 2007.

9        Q.      Okay.    And what about the other case -- the

10   caregivers at Beretta Court, who were they?

11       A.      You had Christina Olachi also that worked

12   there.

13       Q.      Okay.

14       A.      Because the time with HCS is employees --

15       Q.      I'm sorry.      I didn't understand all that.

16   What now?

17       A.      The issue with HCS, sometimes --

18       Q.      Who is ACS?

19       A.      Home and Community-based Services.

20       Q.      HCS.    Okay.

21       A.      Employees come and go.      If their school

22   schedule conflicts with their schedule, sometimes

23   they quit to concentrate on their schoolwork.

24       Q.      Okay.

25       A.      If we don't have any other schedule for




                                                               001323
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1    them.

2        Q.      Okay.   So Amuche.    And who was the other

3    person?

4        A.      Amuche was there.     Clara was there.

5    Christina.     Cherry Hicks.     Ethyl was there.

6        Q.      Now this was a 24-hour care home; is that

7    correct?

8        A.      Yes.

9        Q.      So that meant there was a staff person there

10   with the clients at all times; is that correct?

11       A.      That's correct.

12       Q.      And each client had a folder that set out

13   the individual emergency plan, the individual care

14   plan for each of those clients; is that correct?

15       A.      That's correct.

16       Q.      And those folders and those plans were put

17   together by a team effort.        Is that a fair statement?

18       A.      That's correct.

19       Q.      One of -- in the emergency plan, one of the

20   aspects of the emergency plan talks about evacuating

21   in an emergency and not leaving the particular client

22   alone.     Do you remember that?

23       A.      That's correct.

24       Q.      Okay.   Practically speaking, if you evacuate

25   somebody like Jenny and take them out and there are




                                                           001324
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1    other clients in the home, is it practical to leave

2    her momentarily to make sure the others are out

3    before returning to Jenny?

4        A.   It could be the wording.   What that means

5    is, after you finish evacuating everybody, make sure

6    you keep your eyes on them, do not leave them

7    unattended.

8        Q.   Okay.

9        A.   That's what it's supposed to mean.

10       Q.   And what was the priority, in the event of

11   an emergency, for the staff to address the clients?

12   What were the priorities there?

13       A.   When I give the training, what I usually

14   tell the staff is, the person who is wheelchair bound

15   have to be the first person to be evacuated.     But it

16   all depends on the location of the fire.

17       Q.   Okay.

18       A.   That's what I usually tell them.     The person

19   who is closer to the location of the fire needs to be

20   evacuated first.   Then you go after the other ones.

21       Q.   Any priority when you go after the other

22   ones?

23       A.   It would be the person who is wheelchair

24   bound.

25       Q.   When you say wheelchair bound, you mean the




                                                       001325
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1    person who is least able to get out themselves?

2        A.     Yes, sir.

3        Q.     And in Beretta Court, that would have been

4    Jenny?

5        A.     That would have been Jenny.

6        Q.     September 4, 2008, the fire happened at

7    Beretta Court, right?

8        A.     That's correct.

9        Q.     And you were notified that night; is that

10   correct?

11       A.     That's true.

12       Q.     And did you go to the hospital?

13       A.     That night?

14       Q.     Either that night or later.

15       A.     The first thing in the morning, I went to

16   the hospital.

17       Q.     Okay.

18       A.     Yes.

19       Q.     I think the testimony is that Jenny was in

20   the hospital for approximately a month and that Tanya

21   died the next day.       Were you there during that period

22   of time?

23       A.     When they notified me of the fire, it was at

24   night.     And it was -- the way I was notified was,

25   there was a fire at Beretta Court house.       I said what




                                                          001326
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1    do you mean?        They said, there is fire at Beretta

2    Court house.        I said how?     I believe -- I don't know

3    if it was Inya that called me.           I said, I don't know,

4    I am rushing over there.           I am rushing over there.

5    And then I got another phone call from Kingsley.              He

6    said, there is fire --

7                        MR. THWEATT:     Objection, hearsay.

8                        THE COURT:     Sustained.

9        Q.      (By Mr. Plummer)        Let me ask it another way.

10   You sent your husband over there that night?

11       A.      They called me and they called him.

12       Q.      Okay.

13       A.      When they called me, (pause) my whole body

14   was just shaking.        I was in shock.        But because this

15   is something that you don't really anticipate.              You

16   never imagine, the way we structure the group homes

17   and the way we make sure that there is no fire

18   hazard, the way we give them everything possible, the

19   way we maintain every equipment there, it is just

20   something that you can never imagine that would have

21   happened.

22       Q.      Okay.

23       A.      And I was just confused.        I didn't know what

24   to do.

25       Q.      And, and did you get reports from your




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1    people throughout the evening?

2           A.      Yes.

3           Q.      When did you go to the hospital?

4           A.      That night, I wanted to go, me and Ngozi

5    wanted to go -- because Ngozi stay with me, and we

6    just cried and cried and cried when we got the report

7    that Jenny was burned and Tanya was burned.            We just

8    cried and cried.          My whole body was shaking.    I

9    didn't even know what to do.           I was so confused.    I

10   cry.        I want to go there, but I was just shaking.          I

11   had to go back.          And we stayed on the phone.    I tried

12   to call Jenny's mother.

13          Q.      You tried to call Jenny's mother?

14          A.      I told Ngozi to call Jenny's mom because I

15   could not call her.          Ngozi did and left a message.

16   That morning, she called again.           The next morning, my

17   friend came because I still couldn't drive.

18          Q.      Okay.

19          A.      My friend came and took me to the hospital.

20   We went there.          I met with Jenny's mom.    She came to

21   the hospital.          So we cry.   We were praying.

22   Everybody got around.

23          Q.      Is it fair to say that everybody was upset?

24          A.      I was very angry, very upset.      And we were

25   just upset and just could not imagine what could --




                                                                 001328
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1    why something like that would have happened.

2           Q.      Now, after this event, was there a time when

3    you tried to determine what had happened?

4           A.      Yes.     I was at the hospital all morning, all

5    day.        I came back to the office.        I told them to call

6    Amuche.        So Amuche came.        I asked Amuche what

7    happened.

8                           MR. THWEATT:     Objection, hearsay.

9                           THE COURT:     Sustained.

10          Q.      (By Mr. Plummer)        Did you make an effort to

11   determine what happened, yes or no?

12          A.      Yes, I did.

13          Q.      And did you determine how the fire got

14   started?

15          A.      Yes.

16          Q.      Okay.     And how did the fire get started?

17                          MR. THWEATT:     Objection, foundation.

18                          THE COURT:     Sustained.

19          Q.      (By Mr. Plummer)        Did you, did you go

20   forward in -- was there a procedure that was followed

21   under DADS rules --

22          A.      Yes.

23          Q.      -- that put a limit on what kind of an

24   investigation you could undertake?

25          A.      Yes, sir.




                                                                   001329
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1          Q.    And what was that procedure?

2          A.    That procedure is, if there is an emergency

3    or an incident and Adult Protective Services has been

4    called --

5          Q.    Okay.

6          A.    -- the Program Director at that time must

7    step aside.

8          Q.    And that's you?

9          A.    And that's me.

10         Q.    So that means that you are not to be

11   involved in any particular investigation?

12         A.    No, not at all.

13         Q.    Do you know what the reason for that rule

14   is?

15         A.    Because they don't want you to go and

16   influence the employees or to tell the employees what

17   to say, what to do.        So I abide by all the rules, so

18   I just stayed away.

19         Q.    Okay.     Now, do they also gather all your

20   records at that point in time?

21                       MR. THWEATT:     Objection, Your Honor.

22   May we approach.

23                       THE COURT:     What's the grounds of your

24   objection?

25                       MR. THWEATT:     Relevance.




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1                    THE COURT:     Yes.   Come on up.

2                    (Bench discussion.)

3                    MR. THWEATT:     Your Honor, we have a

4    limine point on this investigation, and it was

5    sustained.   And we are getting very, very close to

6    talking about this investigation within the confines

7    of that limine order that we asked the Court to issue.

8                    THE COURT:     Response, Mr. Plummer?

9                    MR. PLUMMER:     I'm not going any further

10   than where I have been already.          I just want to make

11   sure that the evidence shows that the records were

12   retained, preserved intact and not changed.

13                   THE COURT:     What's the point of making

14   that point in the record?

15                   MR. PLUMMER:     Because some of the

16   records in evidence are from that investigation.

17                   THE COURT:     But why do you need to show

18   the jury that records were obtained and intact during

19   that process?

20                   MR. PLUMMER:     Because I think it's

21   important they understand the integrity of the records

22   that they will be looking at.

23                   THE COURT:     All right.     Move on.

24                   MR. PLUMMER:     Okay.

25                   (Open court.)




                                                              001331
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1           Q.      (By Mr. Plummer)     If you would, Ms. Uduma,

2    tell me all of the fire safety features there were in

3    Beretta Court immediately before September 4, 2008.

4           A.      One of the things that I did --

5           Q.      No, no, no.   Tell me what the fire safety

6    features were.

7           A.      We had the smoke detectors --

8           Q.      Okay.

9           A.      -- in the houses.     We had the exit doors.

10          Q.      The exit doors?

11          A.      Exit doors.

12          Q.      Uh-huh.

13          A.      And also, in those windows, we made sure it

14   is a sliding window where you can slide up and then

15   you can go through it.           And in Jenny's room, she had

16   one.        In Tanya's room and Esperanza's room and

17   Elisha's room, they all had those sliding windows.

18          Q.      Why was that, what does that relate -- how

19   does that relate to fire safety?

20          A.      Because the staff were trained, if there is

21   a fire where you can't get through any of the doors,

22   pull the window up and drag the client through the

23   window.

24          Q.      Any others?

25          A.      There were fire extinguishers.




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1        Q.     Okay.

2        A.     There were also additional smoke detectors

3    in each room and in the living room and in the

4    kitchen.

5        Q.     Okay.

6        A.     And we also made sure that the staff were

7    trained.    And then before the, before the

8    installation of the, of the smoke alarm, we did, we

9    pulled that portion of the standard, the requirement

10   by Department of Aging and Disability that we give to

11   the alarm company to review with, so they came to us

12   and tell us -- they went to the City also.       I believe

13   they use NPF 101 --

14       Q.     Let me stop you a second, and let me see if

15   I can understand this.

16                      You said you got the state regulations

17   and you gave it to the fire alarm people.       Right?

18       A.     Yes, sir.

19       Q.     And that's -- that was the OMNI group that

20   we heard testimony about earlier, right?

21       A.     Yes, sir.

22       Q.     And you said you want to fully comply with

23   those regulations; is that correct?

24       A.     That's correct.

25       Q.     Then they come back to the home and make




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1    installations consistent with those requirements.           Is

2    that a fair statement?

3        A.      They came back with the diagram or with

4    everything that we need.         And then they, they give me

5    the price.     I paid.      So -- and also they had to go

6    file it with the City Fire Marshal, who came to the

7    house to go through every door.         Before then, we made

8    sure that we had a hardcore doors.         We replace all

9    the doors.

10       Q.      Okay.   Wait.     Before then, you did have

11   hardcore doors or didn't have hardcore doors?

12       A.      When Four J's lease the house, we change all

13   the doors to hardcore doors --

14       Q.      Okay.

15       A.      -- with hinges that will slide it open

16   and -- when you open, it will slide closed.         So we

17   replace all the doors in the house and put all that

18   in place.

19       Q.      Okay.

20       A.      The fire marshal, when the fire marshal came

21   in, they went through every door to make sure that

22   those doors were working properly.

23       Q.      Okay.   What about fire inspections and fire

24   marshal inspections for Beretta Court, how often were

25   those done and by whom were those done?




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1        A.   Those were done by OMNI Alarm.       So when it's

2    time for inspection, they usually will call me or

3    call Inya to let them in.

4        Q.   Okay.

5        A.   So Inya sometimes will leave the key or keys

6    under the carpet or will just open the door.

7        Q.   And let the -- was this fire inspection

8    people or fire marshal?

9        A.   No.     Fire inspection people.

10       Q.   Okay.

11       A.   So but the fire marshal, I took the fire

12   marshal, the state fire marshal that comes once a

13   year to do the inspection.

14       Q.   Okay.     In 19- -- excuse me.    In 2007 and

15   2008, did the fire marshal do an inspection of

16   Beretta Court?

17       A.   Yes.

18       Q.   And did the fire marshal identify any

19   deficiencies from a fire safety standpoint for

20   Beretta Court in any of those inspections?

21       A.   No, sir.

22       Q.   You have heard testimony and questions by,

23   by counsel about not having sprinklers in the, in

24   Beretta Court.     Do you remember that testimony?

25       A.   Yes, sir.




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1        Q.      Tell us why you didn't have sprinklers in

2    Beretta Court.

3        A.      Part of my job, when turning the house into

4    four beds, that's the only time you are required to

5    put the smoke detectors.        Part of my job, what we

6    usually do with the case managers is to complete what

7    the City of Houston call E score.

8        Q.      Call what?

9        A.      E score.     E and score.

10       Q.      Okay.

11       A.      So and in that E score, you list the

12   client's name, and it gives you series of questions

13   whether the client would be able to evacuation

14   promptly.     So you answer those questions.     So when

15   you answer those questions, you submit those forms

16   with the questions and answer to DADS, Department of

17   Aging and Disability.        They review it, and they

18   determine whether you need sprinkler system or just

19   the smoke alarm.

20       Q.      Okay.

21       A.      So when he came back, they approved it for

22   just smoke alarm, no sprinkler system was needed.

23       Q.      Okay.   You have heard testimony that

24   Esperanza started this fire with a lighter.         Do you

25   remember that testimony?




                                                             001336
                                                             143



1        A.   Yes, sir.

2        Q.   Do you know how Esperanza got the lighter?

3        A.   No, sir.

4        Q.   Do you all have a smoking policy for each

5    residence?

6        A.   Yes, sir.

7        Q.   And what is that policy?

8        A.   They were not allowed to keep lighters.

9        Q.   When you say "they," you mean the clients?

10       A.   The clients that smoked.

11       Q.   Okay.

12       A.   None of them are allowed to keep lighters or

13   to smoke inside the house or inside the Four J's

14   buses.

15       Q.   Inside Four J's what?

16       A.   Van, the headquarters.

17       Q.   But they can smoke outside?

18       A.   They can smoke outside.

19       Q.   Why not prohibit smoking completely?

20       A.   That will violate their rights.

21       Q.   When you say "violate their rights," do you

22   mean -- the rules and regulations say that if a

23   client has the ability and the capacity to make a

24   decision they want to smoke, you can't stop them from

25   doing that.   Is that a fair statement?




                                                        001337
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1        A.      I cannot stop them, or the agency cannot

2    stop them from doing that.        The only way the agency

3    will stop them from doing that is if the psychologist

4    recommended that.

5        Q.      Okay.

6        A.      Then the case managers, the guardians and

7    the client, they will have to meet, and staff.        And

8    the psychologist will be the one to restrict that

9    right.    So when the State comes for audit, they will

10   look at the steps.      There are several steps you have

11   to follow in order to take the rights away from the

12   client.

13       Q.      What about clients, either at the home or at

14   the activity center, possessing lighters and matches?

15   Did you have a rule on that?

16       A.      Yes, sir.

17       Q.      And what was that rule?

18       A.      That the clients cannot have lighter.

19       Q.      Okay.   What about matches?

20       A.      They cannot -- nobody gives them matches.

21       Q.      Well, how do they get their cigarettes lit?

22       A.      We have the program manager, what they do,

23   the case managers buy the cigarettes and they give it

24   to the --

25       Q.      Buy the cigarettes?




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1        A.   For the clients.

2        Q.   So the clients can't go out and buy

3    cigarettes on their own?

4        A.   Four J's, as a whole, there's only two

5    clients that are allowed to do that.

6        Q.   And why are those two clients allowed to do

7    that.

8        A.   Those two clients are just Level One.      They

9    are very high functioning.

10       Q.   When you say Level One, that's a category --

11       A.   Their IQ is almost like 69.

12       Q.   Okay.

13       A.   So even with that, the staff will still have

14   to walk them to the store to buy it.

15       Q.   Okay.

16       A.   But the reason we did that was to give them

17   the opportunity to live like a normal, regular person

18   and not --

19       Q.   But other than those two, are the other

20   clients allowed to buy cigarettes on their own?

21       A.   No.

22       Q.   Okay.   So staff buys cigarettes.    What about

23   when they want to smoke?     How is that handled?

24       A.   They have cigarette breaks where they have

25   a -- apparently there is a detailed process how it




                                                         001339
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1    goes.    But I know they go to the day-hab director,

2    and that day-hab director or the trainers will pass

3    the cigarette.       They will all be outside and then

4    they will smoke.        After that 15-minute cigarette

5    break, they will take the lighters and everyone will

6    go back in inside.        I can't really tell you the

7    protocol.

8        Q.      Okay.    But the protocol is that they are not

9    supposed to have lighters and matches and leave the

10   with grounds with that; is that correct?

11       A.      That's correct.

12       Q.      You have heard testimony, I believe, that

13   Arzola hid her lighter in her bra.        Do you remember

14   that testimony?

15       A.      Yes, sir.

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

17   fire?

18       A.      Yes, sir.

19       Q.      Okay.    The first question is, in the entire

20   history of Esperanza Arzola, is there any record or

21   any report of her involvement with pyromania, setting

22   fires or any other kind of behavior that would alert

23   you to the likelihood that she would do something

24   like that?

25       A.      No.     Even when the Adult Protective Services




                                                              001340
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1    came --

2        Q.    Okay.    We can't get into that.

3        A.    Oh, okay.

4                      Even with all the documents we gave to

5    the psychologist and even after the fire, I went back

6    and pulled every report.         No report.   I called San

7    Antonio State School, where she came from.          No record.

8        Q.    No record of that?

9        A.    No record of that kind of behavior.

10       Q.    After Jenny was let out of the hospital, we

11   understand that your case manager continued to work

12   with Jenny and her mother for a period of time; is

13   that correct?

14       A.    That's correct.

15       Q.    Did you have occasion to be involved in that

16   continued effort with Jenny?

17       A.    Yes.    Before Jenny --

18       Q.    And what was that, if you can.

19       A.    Before Jenny was discharged from the

20   hospital, the case manager called IDT meeting.

21       Q.    Called a what?

22       A.    Interdisciplinary meeting.

23       Q.    I'm sorry.     Okay.

24       A.    For them to determine the appropriate

25   placement for her at that time.




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1        Q.   Okay.

2        A.   She came to me, she told me --

3                     MR. THWEATT:     Objection, hearsay.

4        A.   The case manager --

5                     THE COURT:     Sustained.

6        Q.   (By Mr. Plummer)        Okay.   The team?

7        A.   The team decided that they going to offer

8    Ms. Wagner a chance to be a foster care mom and have

9    Jenny live in her house.

10       Q.   Okay.

11       A.   And the reason they brought it to my

12   attention is because I have to be the one to sign the

13   contract between Four J's and Ms. Wagner.

14       Q.   And did she become a foster care parent?

15       A.   She became a foster care parent.

16       Q.   Did you all continue to provide any other

17   services to Ms. Wagner in addition to the case

18   management services?

19       A.   Yes.     When she became a foster care

20   provider, she got on our payroll.         And also the case

21   manager, everybody have to -- the nurse, they have to

22   go there and in-service and train her on Jenny's

23   special needs --

24       Q.   Well, this is her mother?

25       A.   -- even though -- well, that is what the




                                                             001342
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1    standard said we have to do.         Even though she is

2    Jenny's mom, we still have to go through the whole

3    list of training, how to do emergency evacuation, how

4    to evacuate her.       Because when she became a foster

5    care, according to the Department of Aging and

6    Disability, she now becomes part of Four J's

7    employee, as a contractor.         So we still have to go

8    through all those steps, making sure that she is

9    trained.

10       Q.     Did you do that?

11       A.     Yes.

12       Q.     Was there -- did you ever step outside the,

13   the -- take off the hat of the Four J's CEO with

14   Ms. Wagner to assist her during this period of time?

15       A.     Yes, sir.

16       Q.     And how did you do that?

17       A.     When Jenny was discharged, myself, the nurse

18   and Ngozi we went to the house.         So she was lying --

19   Ngozi went first, before Jenny arrived, to make sure

20   that everything is okay.         So I went back in the

21   evening.    They were doing dressing changes on

22   Ms. Wagner's bed.      When I looked at it, I, I told

23   Ngozi, call IDT meeting --

24                     MR. THWEATT:     Objection, hearsay.

25                     THE COURT:     Sustained.




                                                               001343
                                                                      150



1                     MR. PLUMMER:     Judge, I think the

2    statement was coming from the witness.

3                     THE WITNESS:     Yes, I am the one that

4    told --

5                     THE COURT:     All right.    The objection is

6    overruled.

7        Q.    (By Mr. Plummer)       You instructed your staff

8    to do what, now?

9        A.    I instructed Ngozi to call IDT meeting and

10   let them look at providing Jenny a hospital bed and

11   all the things that she may need.

12       Q.    Was that done?

13       A.    Yes.    Ngozi called the emergency --

14       Q.    No, no.

15       A.    It was done.

16       Q.    So the hospital bed was delivered?

17       A.    Yes, sir.

18       Q.    And other services were provided?

19       A.    Yes, sir.

20       Q.    I think the record shows that Tanya James

21   didn't have any family members who came to see her

22   while she was a client at Four J's.          Is that --

23                    MR. THWEATT:     Objection, speculation and

24   relevance.

25                    THE COURT:     Rephrase your question.




                                                               001344
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1                        MR. PLUMMER:   Thank you, Your Honor.

2        Q.      (By Mr. Plummer)       Did you attend the funeral

3    of Tanya James?

4        A.      Yes, sir.

5        Q.      And do you recall about when that was, or

6    how long was it after she passed away?

7        A.      As soon as she passed away, the guardian

8    notified me to -- I was the one that went to Forest

9    Park East, made all the funeral arrangement, paid for

10   all the funeral services, organized for a reverend to

11   come and pray, organized for everybody to attend the

12   funeral services.

13       Q.      So you did -- you provided the funeral

14   services.     Now, were there any family members

15   present?

16       A.      No, sir.

17       Q.      Was Ms. Taylor present?

18       A.      No, sir.     We didn't even know she had a

19   family member or a son.        We did not know that.

20       Q.      Okay.     All right.    You purchased the Beretta

21   Court property and later leased it to Four J's; is

22   that correct?

23       A.      Yes, sir.

24       Q.      Okay.     At the time you purchased the Beretta

25   Court property and in preparation for leasing it to




                                                              001345
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1    Four J's, were there any changes made to the house,

2    as far as you can recall?

3        A.      Yes, sir.

4        Q.      What changes were those?

5        A.      We put a wheelchair ramp.

6        Q.      Okay.

7        A.      And then we change all the windows to

8    (indicating).

9        Q.      Changed the windows to make them double

10   hung?

11       A.      Yes.    Yes, sir.

12       Q.      When you say you put the wheelchair ramp up,

13   what part of -- was that for the front and back of

14   the house?

15       A.      For the front door.

16       Q.      Okay.    Any other changes?

17       A.      We widened the bathrooms.

18       Q.      Okay.    To accommodate wheelchairs?

19       A.      For the wheelchairs.    We widened the

20   bedrooms.

21       Q.      The bedroom doors?

22       A.      The bedroom doors.

23       Q.      Okay.

24       A.      Replaced them with hardcore doors.       So those

25   were done before the, the house was leased to




                                                            001346
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1    Four J's.

2        Q.      Okay.     What about the locking system, did

3    you change the kinds of locks in the house?          Or do

4    you recall one way or the other?

5        A.      I, I don't really remember, sir.       I can't

6    recall.     That was back in 2001.

7        Q.      Okay.     You now understand Amuche's actions

8    once she discovered this fire; is that correct,

9    Ms. Uduma?

10       A.      Yes, sir.

11       Q.      You have heard her testimony?

12       A.      Yes, sir.

13       Q.      And I think we all agree that she didn't

14   follow the training she had been given; is that

15   correct?

16       A.      Yes, sir.

17       Q.      Is there any amount of training that you are

18   aware of that you could have given Amuche to ensure

19   that she did not panic at the time of this crisis?

20                       MR. SPARKS:    Objection, Your Honor.

21   Calls for speculation.

22                       THE COURT:    Rephrase your question.

23       Q.      (By Mr. Plummer)       What else could you have

24   done with Amuche to make sure she didn't panic at the

25   time of this crisis?




                                                             001347
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1        A.    I don't think there is any kind of training

2    or in-services that would have given to her because

3    she keep running back and forth three times, to the

4    neighbors, to this, to that.      If she had followed all

5    the training that was given to her or all the

6    in-services that was given to her, she would have

7    been able to get, to get those clients out.

8        Q.    Jenny wouldn't have been burned?

9        A.    No, sir.

10       Q.    And Tanya wouldn't have died?

11       A.    (Shook head negatively.)

12                  MR. PLUMMER:     Pass the witness.

13                  THE COURT:     I tell you what, let's take

14   our lunch break.     We will start back up at 1:00 p.m.

15                  (Jury excused from the courtroom.)

16                  (Lunch recess.)

17                  BAILIFF:     All rise.

18                  (The jury present, proceedings resumed

19                  in open court as follows.)

20                  THE COURT:     Thank you.   Please be

21   seated.

22                  Mr. Thweatt.

23                  MR. THWEATT:     Thank you, Your Honor.

24

25




                                                            001348
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1                          CROSS-EXAMINATION

2    BY MR. THWEATT:

3        Q.   Ms. Uduma, it's true that you never spoke to

4    Esperanza Arzola after this fire, correct?

5        A.   Correct.

6        Q.   Because you did not speak to Esperanza

7    Arzola after this fire, you have no personal

8    knowledge of what her intent was when she set that

9    fire, right?

10       A.   That's correct.

11       Q.   You do understand, though, after listening

12   to the testimony that was read to the jury from

13   Dr. Karen Gollaher yesterday, that Esperanza Arzola

14   had trouble reciting the alphabet.        Do you remember

15   that testimony?

16       A.   There were a lot of things said.

17       Q.   Do you remember it?

18       A.   I remember it.

19       Q.   Do you also understand from Dr. Gollaher's

20   testimony that Esperanza Arzola was having

21   hallucinations.     Do you remember that?

22       A.   Maybe.

23       Q.   Do you also understand from Dr. Gollaher's

24   testimony that Esperanza Arzola was deemed

25   incompetent?   Do you understand that?




                                                           001349
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1                       MR. PLUMMER:     Excuse me, Your Honor.

2    Objection.     Not limited to a specific time period.

3                       THE COURT:     Rephrase your question.

4                       MR. PLUMMER:     Thank you, Your Honor.

5        Q.      (By Mr. Thweatt)       Do you understand from

6    Dr. Gollaher's testimony that Esperanza Arzola was

7    deemed incompetent to stand trial in a criminal

8    proceeding.        Do you understand that?

9        A.      That's what was read.

10       Q.      Well, that's what Dr. Gollaher said, right?

11       A.      That's what was read.

12       Q.      I want to show you a page from Plaintiff's

13   Exhibit Number 44.        This is actually page 5 of

14   Plaintiff's Exhibit Number 44.          This is Esperanza

15   Arzola's Individual Service Plan.          The first behavior

16   for Esperanza Arzola Individual Service Plan at

17   Four J's says that Esperanza is noncompliant most of

18   the time.     Do you remember that?

19       A.      That's correct.

20       Q.      And the second one says her inappropriate

21   behaviors observed were elopement, fighting with

22   staff and consumers, destroying property and verbally

23   abusing staff and peers.          Staff and peers.   That

24   means other residents, doesn't it?

25       A.      Yes.




                                                                 001350
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1        Q.     You testified to this jury that there was no

2    record in Four J's files that Esperanza Arzola ever

3    abused another resident.     Isn't that what you just

4    said?

5        A.     That's correct.   This is history, not, not

6    current.    Actually, if you look at the beginning of

7    the behavior plan that Dr. Lockwood developed, he had

8    aggression degrees and property destruction degrees.

9    And the suicidal attempt was actually removed from

10   one because she had no episode while at Four J's.

11       Q.     You understand that this document that I am

12   showing this jury is from your company?

13       A.     This is the history --

14       Q.     This is your from company; you understand

15   that, right?

16       A.     That's correct, but we have to show the

17   history.

18       Q.     Ma'am, I don't need an explanation.   I just

19   need to know whether this document is from your

20   company.    And it is, isn't it?

21       A.     It is.

22       Q.     Behavior number 3 says, "Esperanza has a

23   history of illicit drug use, sexual promiscuity,

24   sexual abuse, suicidal attempts, pica, mood swings

25   and noncompliance."




                                                          001351
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1                    That's what it says, doesn't it?

2        A.   Yes.

3        Q.   And that she participants in "behavior

4    therapy program targeting deceleration" or, in lay

5    terms, reduction "of aggression," self-industry --

6    "self-injury, property destruction and eloping."

7    Right?

8                    That's what it says?

9        A.   Yes.

10       Q.   All that was known to your company before

11   this fire, right?

12       A.   Yes.    This was known --

13       Q.   It's just a "yes" or "no" question.

14       A.   Yes.

15       Q.   All right.    Esperanza Arzola had a cigarette

16   lighter on the night of the fire, didn't she?

17       A.   I wasn't there.

18       Q.   If Esperanza Arzola had a cigarette lighter,

19   Ms. Uduma, on the night of the fire, the only place

20   she could have gotten it from is from Four J's; isn't

21   that right?

22       A.   I wasn't there, and you don't want me to say

23   anything based on hearsay.    So I was not there.   I

24   don't know.

25       Q.   You don't want to speculate that your




                                                         001352
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1    company may have been the one that provided

2    Ms. Arzola with the incendiary device that killed

3    someone and later caused injuries that we have seen

4    pictures of that were lifelong permanent scar.     You

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

6        A.   No, that's not right.

7        Q.   You are not aware of any other source of a

8    cigarette lighter for Ms. Arzola, other than your

9    company, are you?

10       A.   Because the --

11       Q.   Are you aware of it or not?

12       A.   I cannot say anything based on hearsay.

13       Q.   What you do know is that your clients are

14   given cigarette lighters by your own employees.     They

15   are given those things by your employees, aren't

16   they?

17       A.   I am not aware of that, sir.

18       Q.   Did you not hear your residential staff

19   director, Inya, testify earlier today that he

20   provided cigarette lighters to your clients?

21       A.   No, he did not say that.

22       Q.   He didn't say that?

23       A.   No, sir.

24       Q.   You don't believe that, because there is

25   smoking permitted at Four J's by the residents, that




                                                        001353
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1    your staff members are the persons who give them the

2    devices to light their cigarettes?

3        A.   He did not say that.

4        Q.   Are cigarette lighters permitted in the

5    Beretta Court Home?

6        A.   Actually, if you look at the records,

7    Esperanza never smoked at the residence.

8        Q.   Are cigarette lighters permitted, ma'am, at

9    the Beretta Court residence?

10       A.   If anyone is to smoke at the residence, yes,

11   the staff will have to have the cigarette lighter.

12       Q.   That's not my question.     Is there a rule at

13   Four J's that says you cannot have cigarette lighters

14   in this house?   Is there a rule like that or not?

15       A.   Generally, no.

16       Q.   There is no rule like that --

17       A.   No, sir.

18       Q.   -- right?

19       A.   No, sir.

20       Q.   Don't you think there should be one?

21       A.   There was no need for me to think there

22   should be one at that time.

23       Q.   That's not my question.     My question is:

24   Don't you think there ought to be a rule like that?

25       A.   I did not think so.




                                                        001354
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1        Q.   You still don't think that, do you?

2        A.   We have a rule that --

3        Q.   You still don't think that, do you, ma'am?

4        A.   I don't know, sir.

5        Q.   Even after all that has happened, after

6    someone died and after someone spent a month in the

7    hospital and months in rehab, you still don't think

8    that there ought to be a rule against cigarette

9    lighters at your company.     Is that true?

10       A.   We cannot just ban cigarette lighters from

11   my group homes because that will mean we have to

12   violate the rights of the other consumers who smoke.

13   We can allow cigarette lighter, but the staff will

14   have to have control of the cigarette lighter.

15       Q.   Ms. Uduma, there is no personal right that

16   anybody has to own a cigarette lighter, is there?

17   That is not in any agency regulation that you know

18   of, is it?

19       A.   They have the right to choose to smoke and

20   to choose not to smoke.

21       Q.   That's not the question.

22                 The question is:     Are you aware of some

23   rule that says mentally retarded persons and persons

24   with suicide and depression and antipsychotic -- or

25   psychotic behavior, that those people have a right to




                                                        001355
                                                                162



1    have a cigarette lighter?

2        A.   According to State of Texas, yes.

3        Q.   Have you brought that document with you to

4    this jury?

5        A.   We provided you the standard back in March.

6        Q.   I am asking you whether or not that document

7    that you say exists, has that been provided to this

8    jury?

9        A.   I don't know, sir.     I haven't seen what goes

10   to the jury.

11       Q.   You told this jury that you instructed Ngozi

12   Obichuku to call Ms. Wagner the night of the fire,

13   didn't you?

14       A.   That is correct, sir.

15       Q.   You heard Ms. Wagner say that she didn't get

16   a call from the case worker, Ms. Obichuku, until the

17   morning after the fire.     Didn't you hear her say

18   that?

19       A.   That's what she said.

20       Q.   Is Ms. Wagner lying about that?

21       A.   I can't say that, sir.

22       Q.   You never called Ms. Wagner, did you?

23       A.   I met her in the hospital.

24       Q.   You never called her, did you?

25       A.   No, sir, I didn't.




                                                           001356
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1        Q.    You told this jury that there is at least

2    six fire drills that are required every year for the

3    Beretta Court Home, right?

4        A.    According to the Department of Aging and

5    Disability standard, we are required to have six fire

6    drills.

7        Q.    And all those should be documented, correct?

8        A.    That's correct.

9        Q.    If it's not documented, that means it didn't

10   happen, right?

11       A.    That's correct.

12       Q.    In fact, I think you told this jury that you

13   go beyond what the standard of six that is required,

14   you do it every month, right?

15       A.    That's correct.

16       Q.    And that should be documented too, right?

17       A.    That's correct.

18       Q.    And if it didn't -- if it wasn't documented,

19   that means it didn't happen, right?

20       A.    If you don't have all the copies here, that

21   didn't mean that it didn't --

22       Q.    I'm not asking that.

23                    If it wasn't documented, that means it

24   didn't happen, right?

25       A.    Yes.   But I'm one hundred percent sure it




                                                        001357
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1    was documented.

2        Q.   Okay.

3        A.   Because I review it every year before the

4    audit.

5        Q.   Let me show you Defendants' Exhibit

6    Number 22.

7                     All right.   This is a Four J's Community

8    Living Center Fire Evacuation Drill Report.      We can

9    see it's marked Defendant's Exhibit Number 22.      And

10   I've about got in my hand, Ms. Uduma, five.      Five fire

11   drill reports.

12       A.   We have --

13       Q.   Do you see that?

14       A.   Yes, sir.

15       Q.   The first one is dated January 24th, 2008

16   from Defendants' 22.

17                    The next one in that pile that your

18   attorneys have provided to this jury is dated

19   April 3rd, 2008.     Do you see that?

20       A.   Yes.

21       Q.   That means we don't have documentation from

22   any fire drill in February or March, right?

23       A.   We did.

24       Q.   Well, where is it?

25       A.   All those documents were given to Adult




                                                         001358
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1    Protective Services.

2        Q.   You haven't brought it to show it to this

3    jury, right?

4        A.   I don't know what you were given, but I made

5    those documents available.

6        Q.   What I have been given is what your attorney

7    provided to this jury.

8                    The next document is May 6th, 2008.        Do

9    you see that?

10       A.   Yes.

11       Q.   Then there is one for June 20th, 2008?

12       A.   Yes.

13       Q.   And then the last one, the fifth and final

14   piece of paper evidencing all of the fire drills for

15   2008, is dated August the 5th, 2008.     So we are

16   missing July, we are missing February, we are missing

17   March, according this paperwork, aren't we?       Right?

18       A.   All those documents were provided because we

19   had an audit in that June and we made all the

20   documents available to DADS.

21       Q.   Well, you --

22       A.   They review fire drill hundred percent for

23   every house.

24       Q.   I'm sorry.     What was the last part?

25       A.   The Department of Aging and Disability, when




                                                          001359
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1    they come for audit, it's one of the documents they

2    review hundred percent for every single house.

3        Q.   All right.    But, again, if it's not

4    documented, it wasn't done.    That's what the rule is

5    in your business, right?

6        A.   We, we provided those documents.    I don't

7    know why you don't have it.

8        Q.   That's not my question.

9                    Is that the rule?

10       A.   Yes.    But we did document all that.

11       Q.   All right.    Let me talk to you about

12   training of Amuche.

13                   You said Amuche was at all the training

14   and that she did everything that was asked of her,

15   right?

16       A.   That's correct.

17       Q.   Is there a document anywhere in your files

18   that indicates that Amuche had a fire extinguisher

19   placed into her hands, where she pulled the pin,

20   where she pressed down the lever, where she was

21   shown, actually in her hand, how to operate and use a

22   fire extinguisher?    Is there a document that reflects

23   that?

24       A.   Usually when the fire marshal gives

25   training, we give them the same document to sign




                                                        001360
                                                                    167



1    their names.

2        Q.     Is there a document which reflects that?

3        A.     There should have been one.

4        Q.     Have you brought it to show this jury?

5        A.     I give everything out, so I don't know what

6    you have now.

7        Q.     You told the jury that the fire marshal came

8    to provide training to your employees; is that right?

9        A.     That's correct.

10       Q.     Let me show you Defendants' Exhibit 23.

11   These are the only minutes of staff in-service

12   training that you have provided in this case for the

13   year 2008.     Do you understand that?

14       A.     We had --

15       Q.     Do you understand that these are the only

16   minutes?

17       A.     That wasn't the only minute that happened.

18       Q.     Well, that's the only ones that your

19   attorneys have shown to this jury.          I want you to

20   read this quietly to yourself and show me where the

21   words "fire marshal" appear, anywhere in those

22   minutes.

23       A.     Okay.     I said --

24                      THE COURT:     Bring her a hard copy.

25                      MR. THWEATT:     Yes, Your Honor.




                                                                001361
                                                                      168



1        A.      I said the fire marshal comes --

2        Q.      (By Mr. Thweatt)       There isn't a question

3    pending, Ms. Uduma.        I would like you to read that to

4    yourself.

5                       (Referenced document tendered to the

6                       witness.)

7        A.      What I said was that the fire marshal

8    comes --

9                       THE COURT:     Ma'am, focus on the question

10   that's asked, please.

11       A.      (Witness complies.)

12                      Okay.

13       Q.      (By Mr. Thweatt)       You are reading from

14   Defendants' Exhibit Number 23.          Correct?

15       A.      Yes.

16       Q.      Do the words "fire marshal" appear anywhere

17   in that document?

18       A.      This is the one --

19       Q.      Do the words "fire marshal" appear anywhere

20   in that document?

21       A.      No, sir.

22       Q.      Thank you.

23                      MR. THWEATT:     Pass the witness, Your

24   Honor.

25                      THE COURT:     Mr. Sparks.




                                                               001362
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1                     MR. SPARKS:   Briefly, Judge.

2                          CROSS-EXAMINATION

3    BY MR. SPARKS:

4        Q.   Good afternoon, Ms. Uduma.       How are you

5    today?

6        A.   I'm fine, sir.

7        Q.   We spoke earlier, did we not?       Okay.

8                     Tell the jury what years you went out

9    to the property with the fire marshal?

10       A.   The fire, the fire marshal inspection is

11   usually done once a year.      So I went there -- I don't

12   know if it was November or December of '07.

13       Q.   November of 2007?

14       A.   Yes.     I'm not really sure what month.

15       Q.   Okay.     Would you have gone in 2006?

16       A.   Yes.     It's every year.

17       Q.   Would you have gone in 2005?

18       A.   Yes.

19       Q.   And November 2004?

20       A.   I'm not sure.

21       Q.   You're not sure?

22       A.   Yes.

23       Q.   When you went in 2007, you took the fire

24   marshal to the property?

25       A.   Yes.




                                                             001363
                                                                  170



1          Q.   And you showed him around?

2          A.   Yes.

3          Q.   And you opened up the back door for him?

4          A.   Yes.

5          Q.   Was the key that Mr. Inya was talking about

6    that was hanging up at the top, was that where it was

7    at?

8          A.   It was in the drawer.

9          Q.   It was in the drawer?

10         A.   Yes.

11         Q.   And was it also there in -- and you took him

12   in 2006, you also opened that door for him?

13         A.   Yes, sir.

14         Q.   You did?

15         A.   Yes, sir.

16         Q.   And in 2005?

17         A.   I -- maybe.

18         Q.   Do you recall in February -- I'm sorry,

19   November 17th of 2010 having your deposition taken by

20   us?

21         A.   Okay.     Do I recall it?   Yes.

22         Q.   You did give your deposition, yes?

23         A.   Yes.

24         Q.   And --

25                      MR. SPARKS:   Judge, may I approach the




                                                           001364
                                                                    171



1    witness, Your Honor?

2                        THE COURT:    Yes.

3        Q.      (By Mr. Sparks)       I want to give you a copy

4    of your deposition.        Have you ever seen it in this

5    form?    This would have been provided to your

6    attorneys after it was compiled by the court

7    reporter.     Have you ever seen that?

8        A.      No, not in this form.

9        Q.      I want to direct your attention, if I may,

10   to page 4 of that volume.          I'm going to put it up on

11   the screen so the jury can see it.

12                       THE COURT:    Just read it.

13                       MR. SPARKS:    Okay.

14       Q.      (By Mr. Sparks)       It says on page 4, "Having

15   been first duly sworn, testified" -- I'm sorry.

16   "Anthonia Uduma, having been first duly sworn,

17   testifies as follows."

18                       Do you recall being sworn at that

19   deposition before giving your testimony?

20       A.      Yes.

21       Q.      You do?

22       A.      Yes.

23       Q.      I want to direct your attention, if I can,

24   ma'am, to page 147 of that document.

25       A.      Okay.




                                                             001365
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1        Q.     And the question on page 147, line 19 is

2    this:    "Would it have been customary?"

3                    MR. PLUMMER:     Excuse me, Your Honor.

4    May we approach?

5                    THE COURT:     Yes.

6                    (Bench discussion.)

7                    MR. PLUMMER:     I'm not sure counsel --

8    whether counsel is trying to read testimony or impeach

9    the witness.    But if he is trying to impeach the

10   witness, I think he is going about it the wrong way.

11                   THE COURT:     What are you trying to do?

12                   MR. SPARKS:     I'm just trying to get her

13   to recall the testimony.

14                   THE COURT:     She didn't indicate that she

15   couldn't remember.    She told you in 2005, yes.        She

16   gave you "yes" or "no" answers.       I don't remember her

17   saying anything like "I don't remember" or "I can't

18   remember."

19                   MR. SPARKS:     All right.   I'll, I'll --

20                   THE COURT:     If you are going to use it

21   to refresh her recollection, you will need to lay that

22   predicate.

23                   MR. SPARKS:     All right.   Thank you.

24                   (Open court.)

25       Q.     (By Mr. Sparks)     Ms. Uduma, do you ever




                                                             001366
                                                                     173



1    recall telling me that you were not aware that that

2    back door had a deadbolt lock on it until after the

3    fire?

4        A.   I don't recall telling you that.

5        Q.   You don't recall telling me that?

6        A.   No, sir.     If I did, it must have been -- if

7    it's written, then maybe I was misunderstood.           But I

8    don't recall that because I know I opened the back

9    door for the fire marshal.

10       Q.   Okay.     Can you look on page 147?

11       A.   Okay.

12       Q.   Look at line 22.        My question to you was:

13   "Is it your testimony, ma'am, that regarding the

14   locking mechanism at the Beretta property is one of

15   the reasons that that deadbolt lock at the back door

16   was because Ms. Esperanza was an eloper?"

17                    And you said, "That's what I was told."

18                    MR. PLUMMER:     Objection.   I'm not sure

19   whether -- objection, Your Honor.        May we approach the

20   bench?

21                    THE COURT:     Yes.

22                    (Bench discussion.)

23                    MR. PLUMMER:     Objection, improper

24   foundation for impeachment.        He is reading something

25   completely different from what the question was he




                                                             001367
                                                                      174



1    asked.   He has no predicate at all.

2                    MR. SPARKS:     She said she didn't recall

3    making that statement.

4                    THE COURT:    Right.   So you look at the

5    deposition and say, does that refresh your

6    recollection.    If she still denies it, then you go and

7    you lay your foundation to impeach.

8                    MR. SPARKS:     Thank you, Judge.

9                    (Open court.)

10       Q.   (By Mr. Sparks)      Ma'am, could I direct your

11   attention to page 147, at the bottom, line 22.             And

12   then I want you to, if you would, please, go to

13   page 148 and look at line 12, and tell me whether

14   that refreshes your memory of your testimony about

15   the deadbolt lock.

16       A.   Yes.

17       Q.   So is your memory refreshed now in reference

18   to what you told me then?

19       A.   Yes.

20       Q.   And what is it?      Were you aware that the

21   deadbolt lock existed before or after the fire?

22       A.   I don't really know.       But I remember there

23   was a section also that I addressed the issue that I

24   opened the back door for the fire marshal.          So I

25   don't really know.




                                                                001368
                                                                          175



1        Q.      I understand that, and you said that today.

2                        My question is:     Do you recall telling

3    me in November that you never were aware that that

4    door had -- that it had the deadbolt lock on it until

5    after the fire?

6        A.      Yes.

7        Q.      And was that what your testimony in this

8    deposition was then?

9        A.      I'm not really sure.

10       Q.      Okay.     Can you read line 12 to the jury?

11                       MR. PLUMMER:     Excuse me, Judge.   May we

12   approach?

13                       THE COURT:     Do you have an objection?

14                       MR. PLUMMER:     Yes.   Improper predicate.

15                       THE COURT:     Sustained.

16                       MR. PLUMMER:     Thank you.

17       Q.      (By Mr. Sparks)        So your testimony, ma'am,

18   is that you were not aware that the deadbolt lock

19   existed on the property until after the fire?

20                       MR. PLUMMER:     Objection, repetition.     We

21   have already been over this, Judge.

22                       THE COURT:     Overruled.

23       A.      Can you ask the question again?

24       Q.      (By Mr. Sparks)        Yes, ma'am.

25                       Did you not testify previously that you




                                                               001369
                                                                   176



1    were not aware that the deadbolt lock existed at the

2    Beretta Court property until after the fire?

3        A.      That's what I saw here.

4        Q.      That's what you said then?

5        A.      Yes.

6        Q.      Is that a "yes"?

7        A.      I guess so.     Yeah.

8        Q.      But now you are saying that you were aware

9    that it existed because you went over there even

10   before the fire, at least on three prior occasions,

11   and opened the door for the fire marshal?

12       A.      That's what I thought I did.     It had been

13   too long.     That's what I thought I did.     But I

14   remember testifying that also on November, if I am

15   correct.     I haven't read the documents where I said

16   that I opened the door for the fire marshal.           So I

17   don't know.

18       Q.      You don't know whether the statement you

19   gave in February is more accurate or the statement

20   you have given today?

21       A.      I'm not sure.

22       Q.      You are not sure?

23       A.      Yes.

24       Q.      All right.    Look at page 161, if you would,

25   please.     And look at line 22 and your answer to it on




                                                             001370
                                                             177



1    25, and tell me if that helps you with your

2    recollection.

3        A.   Which line is it?

4        Q.   22, page 161.

5        A.   Okay.

6        Q.   So does that help you with what your answers

7    were back on November 17, 2010 on the same subject

8    matter, about the back door lock being there?

9        A.   Yeah.     That reminds me.

10       Q.   It reminds you?

11       A.   Uh-huh.

12       Q.   So my question is:     Were you aware of the

13   back door having the deadbolt lock on it before or

14   after the fire?

15       A.   I really can't remember.

16       Q.   You really can't remember?

17       A.   Yes.

18       Q.   But you do remember going there with the

19   fire marshal in 2005 and letting him in with a key to

20   that lock; is that correct?

21       A.   I remember going there in 2007 --

22       Q.   In 2007?

23       A.   -- with the fire marshal.

24       Q.   Which would have been before the fire?

25       A.   Yes.




                                                        001371
                                                                    178



1        Q.     Okay.     So if you went in 2007 before the

2    fire, then you would have been aware of that deadbolt

3    lock being on the door; is that correct?

4        A.     I'm not really sure because it's been too

5    long.    So I don't even know.

6                       MR. SPARKS:     No further questions,

7    Judge.

8                       THE COURT:     Mr. Plummer.

9                       MR. PLUMMER:     Yes, Your Honor.

10                         REDIRECT EXAMINATION

11   BY MR. PLUMMER:

12       Q.     You have familiarized yourself, Ms. Uduma,

13   with Esperanza Arzola's clinical history and

14   Individual Service Plan; is that correct?

15       A.     That's correct.

16       Q.     And you have also familiarized yourself with

17   her other history, as reflected in the records of

18   Four J's, that predated her coming to Four J's group

19   home and while she was there; is that correct?

20       A.     That's correct.

21       Q.     And is it fair to say -- well, based upon

22   that review and based upon that history, do you

23   believe Arzola understood what she was doing when she

24   lit that lighter?

25                      MR. THWEATT:     Objection, calls for




                                                                001372
                                                                         179



1    speculation.

2                        MR. SPARKS:     Objection.

3                        THE COURT:     Sustained.

4        Q.      (By Mr. Plummer)        Mr. Thweatt has gone

5    through a list of items that were in her Individual

6    Service Plan, her annual service plan review.              Do you

7    remember that?

8        A.      Yes, sir.

9        Q.      Okay.     Let me ask you, during the time

10   Esperanza was at Four J's, did her condition remain

11   the same as it was when she got there, get worse or

12   improve?

13                       MR. THWEATT:     Objection, foundation.

14                       THE COURT:     Rephrase your question.

15       Q.      (By Mr. Plummer)        Based on, based on the

16   annual Individual Service Plan that was prepared for

17   Arzola, did Esperanza Arzola's condition get worse,

18   remain the same, or improve while she was at

19   Four J's?

20       A.      Improve.

21       Q.      Okay.     And it improved significantly in the

22   area of aggression; is that correct?

23                       MR. THWEATT:     Objection, leading.

24                       THE COURT:     Sustained.

25       Q.      (By Mr. Plummer)        Well, let me show you a




                                                                001373
                                                                      180



1    part of the record.     Let me show you page 15, please,

2    of that record.

3                     THE COURT:     Which exhibit are you

4    referring to, Mr. Plummer?

5                     MR. PLUMMER:     I'm sorry, Your Honor.    It

6    is Exhibit 44.

7                     MR. THWEATT:     Plaintiff's Exhibit 44.

8                     MR. PLUMMER:     I'm sorry.   It's

9    Plaintiff's Exhibit 44.       I said Exhibit 44, is that

10   right?

11                    MR. THWEATT:     You did.

12                    MR. PLUMMER:     Okay.

13       Q.     (By Mr. Plummer)      And the very top up there,

14   if you would, read that out to the jury, please,

15   ma'am.

16       A.     "The team accepted the recommendations as

17   written.    Esperanza's trainer informed the IDT that

18   Esperanza has made a tremendous improvement in

19   handling conflict and exercising.         She recommended

20   that running the same program with Esperanza for

21   another year will further enhance her skills and

22   improve her independence in the community."

23       Q.     And is it fair to say there are other

24   provisions of that report that reflect the same kind

25   of improvement, tremendous improvement in her




                                                             001374
                                                                      181



1    behavior?

2                        MR. THWEATT:     Objection, leading.

3                        THE COURT:     Sustained.

4        Q.      (By Mr. Plummer)        Let me direct your

5    attention to Page 14 and the second paragraph of

6    Exhibit 44.     If you would, direct your attention down

7    to the second or the third sentence in that

8    paragraph, second paragraph, that begins with the

9    word "While at the day habilitation."           Do you see

10   that?

11       A.      No, sir.

12       Q.      Let me point it out for you.        Beginning

13   here.

14       A.      Okay.

15       Q.      If you would, read that to the jury, please.

16       A.      "While at the day habilitation program, she

17   participates in activities designed to assist in

18   acquisition, retention and improvement of adaptive

19   skills, socialization and activities of daily living.

20   Esperanza was trained in the area of avoiding and

21   resolving conflicts and exercise skills.           These goals

22   paid off as Esperanza lost over 40 pounds this

23   period.     She is presently on the independent stage."

24       Q.      When you say "independent stage," what does

25   that mean?




                                                                 001375
                                                                 182



1        A.   It means getting ready to move to her own

2    apartment.

3        Q.   So part of the process employed with the

4    group home with high functioning individuals like

5    Esperanza was designed to be able to move somewhere

6    else?

7        A.   Yes.

8        Q.   Okay.     Very good.

9                     MR. PLUMMER:     May I approach the

10   witness, Your Honor?

11                    THE COURT:     Yes.

12       Q.   (By Mr. Plummer)        Who was the fire marshal

13   who you visited with, or the fire person who you

14   visited with, for the inspections from the Texas

15   Health and Human Services Commission?        Do you

16   remember who that was?

17       A.   Yes.

18       Q.   What was his name, do you remember?

19       A.   Ron Waldie.

20       Q.   Okay.     And he visited -- you visited with

21   him at each home; is that correct?

22       A.   Yes.     Part of the procedure, when I visit

23   with him, he will look at all the fire drills to make

24   sure we have every fire drill before approving the

25   continuation of the permit.




                                                            001376
                                                                    183



1        Q.   Okay.

2                     MR. PLUMMER:     May I approach, Your

3    Honor?

4                     THE COURT:     Yes.

5        Q.   (By Mr. Plummer)        Let me show you what's

6    been marked as Defendants' Exhibit Number 9.         Can you

7    recognize that document, please, ma'am?

8                     (Referenced document tendered to the

9                     witness.)

10       A.   Yes, sir.

11       Q.   (By Mr. Plummer)        Is that the report Ron did

12   of a fire inspection of Beretta Court back in 2007?

13       A.   Yes, sir.

14       Q.   Okay.     Does it show any deficiencies on it?

15       A.   No, sir.

16       Q.   Okay.     And you are supplied a copy of that

17   as part of your records, your business records; is

18   that right?

19       A.   Yes, sir.

20                    MR. PLUMMER:     We would offer Defendants'

21   Exhibit 9.

22                    THE COURT:     Any objection?

23                    MR. SPARKS:     Yes, sir, Judge.   That

24   document is hearsay.

25                    THE COURT:     Approach the bench, please.




                                                              001377
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1                   (Bench discussion.)

2                   (Referenced document tendered to the

3                   Court.)

4                   THE COURT:     Your response, Mr. Plummer?

5                   MR. PLUMMER:     Beg your pardon?

6                   THE COURT:     Your response to the hearsay

7    objection?

8                   MR. PLUMMER:     Well, first of all, the

9    response to the hearsay objection is that this is a

10   part of her business records.      It is maintained with

11   her.   And this is a report, and she was there with the

12   fire marshal and he supplied her with a copy.

13                  THE COURT:     So this is a document

14   generated by the fire marshal?

15                  MR. PLUMMER:     Yes.

16                  THE COURT:     It is not generated by

17   Four J's?

18                  MR. PLUMMER:     It is not -- the

19   transmittal letter is generated by Four J's, but the

20   fire marshal report is generated by them.      It is

21   supplied to them as a part of their normal

22   recordkeeping that they are supposed to keep in their

23   records.

24                  THE COURT:     Mr. Sparks?

25                  MR. SPARKS:     Judge, it's not a business




                                                            001378
                                                                      185



1    record in terms of -- because they didn't produce the

2    record.   She can't say it was made at a time that the

3    information was produced.        She didn't have it.     She's

4    not signing this.

5                     MR. THWEATT:     As being made in the

6    course of their business documents, it is retrieved

7    from somewhere else and stuffed into a file.           That's

8    an end around the hearsay rule.

9                     THE COURT:     I don't think you have

10   satisfied the business records exception.

11                    MR. PLUMMER:     Very well, Your Honor.

12                    THE COURT:     The objection is sustained.

13                    MR. SPARKS:     We would like to have an

14   instruction.

15                    (Open court.)

16                    THE COURT:     The objection is sustained.

17   The jury will disregard any testimony about the

18   contents of Defendants' Exhibit 9 unless it is ever

19   admitted into evidence.

20       Q.    (By Mr. Plummer)       Couple more questions,

21   Ms. Uduma.     When Ron Waldie visited with you at the

22   Beretta Court and went through his inspection, did he

23   complete his report at that time?

24       A.    Yes.    Right there.

25       Q.    Right there?




                                                              001379
                                                               186



1        A.   Right there.     He complete it and then tear

2    the copy, give me a copy and take the yellow one.

3        Q.   The date he did that -- do you recall the

4    date?

5        A.   It has to be the date written on the form.

6        Q.   Do you recall what date that was?

7        A.   That was in December '07.

8        Q.   Okay.     Would it help to refresh your memory

9    to see the document?

10       A.   Yes.

11       Q.   Does that help refresh your memory as to

12   when it was?

13       A.   Yes.

14       Q.   Now, the second page of that document, is

15   that a letter from you?

16       A.   Yes.    Before he comes to the house --

17       Q.   No, no.

18       A.   Yes.    Yes.

19       Q.   And what does that letter -- is that a

20   letter addressed to the fire marshal?

21       A.   Yes, sir.

22       Q.   Or to Ron Waldie?

23       A.   To the fire marshal.

24       Q.   The fire inspector?

25       A.   Yes, sir.




                                                        001380
                                                               187



1        Q.   What does that letter tell the fire

2    inspector before he gets there?

3        A.   It tells the fire inspector that we have

4    applied fire retardant.     And the reason they require

5    us to applied it, in case there is fire, we apply it

6    on the beds, the curtains, the draperies, everything.

7    It will slow the fire from --

8        Q.   Spreading?

9        A.   -- spreading rapidly.     We sprayed it on all

10   the cabinets, the sofas, everywhere.

11       Q.   So you gave this to Mr. Waldie at the time

12   he did his inspection; is that correct?

13       A.   Yes, sir.     You have to have it there.

14       Q.   Now, are you required to maintain this

15   record in your files?

16       A.   Yes, sir.     This is one of the documents,

17   when the State comes to do the audit, they have to

18   review this to make sure that we pass the fire

19   inspection, fire marshal inspection.

20       Q.   So it's an official record that you have to

21   keep in your records in order to comply with the

22   statutory requirements and the regulatory

23   requirements; is that right?

24       A.   It is, sir.     Yes.

25       Q.   Okay.




                                                         001381
                                                                   188



1                  MR. PLUMMER:     We renew our offer, Your

2    Honor, to Exhibit 9.

3                  THE COURT:     Any objection?

4                  MR. THWEATT:     We renew our objection to

5    hearsay.

6                  THE COURT:     Come on up.

7                  (Bench discussion.)

8                  THE COURT:     All right.    So your

9    objection is hearsay, and your argument is that she is

10   required by law to keep it in her records?

11                 MR. PLUMMER:     Yes, sir.

12                 THE COURT:     And this is generated by a

13   governmental agency?

14                 MR. PLUMMER:     Yes.   It's Ron Waldie,

15   it's the Texas Human Health and Services Commission.

16   Texas Health and Human Services Commission.

17                 THE COURT:     Why isn't it a public

18   record?

19                 MR. THWEATT:     Well, I don't think it's a

20   public record, Judge, because Mr. Waldie has not

21   confirmed that he's the one who prepared this.       He may

22   have, but that's not before this Court.

23                 THE COURT:     The objection is overruled.

24   This is, what, 9?

25                 MR. PLUMMER:     Exhibit 9, Your Honor.




                                                          001382
                                                                   189



1                     THE COURT:     Defendants' Exhibit 9 will

2    be admitted.

3                     MR. PLUMMER:     Thank you, Your Honor.

4                     (Open court.)

5                     THE COURT:     The objection is overruled.

6    Defendants' Exhibit 9 is now admitted.         The jury may

7    disregard my prior instruction about it.

8                     (Defendants' Exhibit 9 is received in

9                     evidence.)

10                    THE COURT:     Mr. Plummer.

11                    MR. PLUMMER:     Thank you, Your Honor.

12                    I'm sorry.

13                    (Referenced document returned to

14                    counsel.)

15                    MR. PLUMMER:     Your Honor, at this time,

16   the Defendants pass the witness.

17                    THE COURT:     Y'all approach the bench

18   real quick.

19                    (Bench discussion.)

20                    THE COURT:     Plaintiffs are up to 6 --

21   Intervenors are up to 6 hours, 54 minutes.          So you

22   have about 6 minutes left with this witness for any

23   recross.     Do you have any other witnesses after

24   Ms. Uduma?

25                    MR. PLUMMER:     No, Your Honor.




                                                             001383
                                                                       190



1                     THE COURT:     All right.     Have a seat.

2                     (Open court.)

3                     THE COURT:     Mr. Thweatt.

4                     MR. THWEATT:     Nothing further, your

5    Honor.

6                     THE COURT:     Mr. Sparks.

7                     MR. SPARKS:     Just briefly, Judge.

8                         RECROSS-EXAMINATION

9    BY MR. SPARKS:

10       Q.   What did the fire marshal tell you about the

11   deadbolt lock?

12       A.   He did not say anything.

13       Q.   He didn't say anything?

14       A.   No, sir.     If he had any concern, on that

15   comments, he will make -- he will make comments

16   there, and then he will fail the house.

17       Q.   And you certainly were aware --

18                    MR. PLUMMER:     Excuse me, Your Honor.      I

19   don't believe she had finished answering the question.

20                    THE COURT:     Let him ask his question.

21                    What's your next -- go ahead and ask

22   your question.

23       Q.   (By Mr. Sparks)        You certainly were aware

24   that not everyone in the house had access to exit

25   that door, it being in the condition it was in with




                                                              001384
                                                                191



1    the locking mechanism, right?

2        A.   I was not aware of that.

3        Q.   You weren't aware of that?

4        A.   No, sir.

5        Q.   So you weren't aware that Tanya James

6    couldn't unlock that door?

7        A.   The team will have to determine this.      I

8    wasn't aware of that.

9        Q.   The team would have to determine that, you

10   weren't aware of that?

11       A.   I wasn't aware of that.     I'm not part of the

12   team.

13       Q.   You're not part of the team?

14       A.   Yes, sir.

15       Q.   You are the owner of the club, right?

16                 MR. PLUMMER:     Excuse me.   Your Honor,

17   objection to the sidebar.

18                 THE COURT:     Sustained.

19                 Rephrase the question.

20       Q.   (By Mr. Sparks)     You are the owner of the

21   company, are you not?

22       A.   That's correct.

23       Q.   And the team works for you, do they not?

24       A.   No, sir, not all of them.

25       Q.   Not all of them?




                                                         001385
                                                                     192



1           A.   Yes, sir.

2           Q.   So you weren't aware that Tanya wasn't able

3    to leave that property because the team hadn't

4    communicated to you?     Is that your statement?

5           A.   The team will meet and make all the

6    decisions and recommendations.        They are not supposed

7    to communicate that to me unless there is a problem.

8           Q.   My question is, ma'am:     You weren't aware

9    that Tanya wasn't able to leave that facility unless

10   the team had informed you of that?           Is that your

11   testimony, yes or no?

12          A.   I'm not even sure what you are asking me,

13   sir.

14                    MR. SPARKS:     Pass the witness, Judge.

15                    THE COURT:     Mr. Plummer.

16                    MR. PLUMMER:     Nothing further, Your

17   Honor.

18                    THE COURT:     Thank you.     You may step

19   down.

20                    (The witness was excused from the

21                    witness stand.)

22                    THE COURT:     Defense, call your next

23   witness.

24                    MR. PLUMMER:     Your Honor, subject to

25   some motions, the Defendants would rest at this time.




                                                                 001386
                                                                        193



1                     THE COURT:     Defendants rest.      All right.

2                     Approach the bench, please.

3                     (Bench discussion.)

4                     THE COURT:     Y'all have 5 minutes for a

5    rebuttal case.     Are you going to put on any rebuttal?

6                     MR. THWEATT:     I'm going to put

7    Ms. Wagner on for two or three questions in rebuttal.

8    That's it, Your Honor.

9                     THE COURT:     All right.   Have a seat.

10                    (Open court.)

11                    THE COURT:     Mr. Thweatt, call any

12   witnesses you have to call.

13                    MR. THWEATT:     Your Honor, we call

14   Ms. Wagner back for rebuttal.

15                    THE COURT:     Ms. Wagner, I will remind

16   you, you are still under oath.        Have a seat.

17                    You may proceed, Mr. Thweatt.

18                           PATTI WAGNER,

19   having been previously placed under oath, testified as

20   follows:

21                        DIRECT EXAMINATION

22   BY MR. THWEATT:

23       Q.     Ms. Wagner, I want to ask you a question

24   about the document that we questioned Ms. Obichuku

25   about, Defendants' Exhibit Number 59.         Okay?




                                                              001387
                                                                 194



1        A.   Yes, sir.

2        Q.   And I want to ask you about this last

3    sentence here that Ms. Obichuku says she wrote.       It

4    says, "Case Manager spoke with Jenny's mother, whom

5    was very pleased with Jenny's results."    That's dated

6    September 6, 2008.

7                  Do you see that?

8        A.   Yes, sir.

9        Q.   Were you pleased with the results that were

10   happening on September 6, 2008?

11       A.   Jenny was still in critical condition.       She

12   was alive.   I was pleased with that.   But I never

13   spoke with, with Ms. -- with Ms. Ngozi.    I was at the

14   hospital at that time of day.

15       Q.   What were you feeling, other than pleasure,

16   during that period of time in your life?

17       A.   I was terrified.

18       Q.   Ms. Ngozi, you heard her testify that Jenny

19   was sleeping in her bed at your apartment once she

20   was released from Memorial Hermann Hospital.     Do you

21   remember that testimony?

22       A.   Yes, sir.

23       Q.   Is that true?

24       A.   No, sir.

25       Q.   Where was Jenny sleeping when you brought




                                                       001388
                                                                 195



1    her home to your apartment after the fire?

2        A.    She was sleeping in a recliner.     She called

3    it her comfy chair.

4        Q.    Why was Jenny sleeping in her recliner?

5        A.    At first, it was because when we brought her

6    home she had bandages on her legs from where the

7    grafts were.   And in order to keep her as free as

8    possible from pain, we had her sleeping in the comfy

9    chair because laying flat pulled on the bandage.

10   It's a special bandage, and it would pull on her

11   thighs.   And that's why it started out.     She would be

12   in the comfy chair.   And then my mom and dad stayed

13   with me that first two weeks and slept in my bedroom.

14       Q.    Where did you sleep?

15       A.    On the couch in the living room with Jenny.

16       Q.    Where does Jenny sleep now?

17       A.    In her comfy chair.

18       Q.    If you put her in her bed in her room at

19   night, will she sleep?

20       A.    No, sir.

21                  MR. THWEATT:     Pass the witness, Your

22   Honor.

23                  THE COURT:     Mr. Sparks.

24                  MR. SPARKS:     No questions, Your Honor.

25                  THE COURT:     Mr. Plummer.




                                                         001389
                                                                         196



1                    MR. PLUMMER:     No questions, Your Honor.

2                    THE COURT:     Thank you, ma'am.     You may

3    step down.

4                    (The witness was excused from the

5                    witness stand.)

6                    THE COURT:     Anything else, Mr. Thweatt?

7                    MR. THWEATT:     No, Your Honor.

8                    THE COURT:     Mr. Sparks?

9                    MR. SPARKS:     No, sir.

10                   THE COURT:     Plaintiffs and Intervenors

11   rest?

12                   MR. THWEATT:     We do, Your Honor.

13                   MR. SPARKS:     We do, Your Honor.

14                   THE COURT:     Ladies and gentlemen, that

15   completes the presentation of testimony and evidence

16   in this case.    The lawyers and I have some work we

17   need to do.     Sometimes that can take a very short

18   amount of time, sometimes it takes a little bit

19   longer.   Since I don't know exactly how long it is

20   going to take, I don't want to keep you all sitting in

21   the jury room wondering whether you are going to be

22   coming back in 10 minutes, 30 minutes, or an hour.             So

23   we are going to break early today for you all.          We

24   will start up tomorrow morning at 8:30 with the Charge

25   of the Court, and then the parties will give their




                                                            001390
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1    closing arguments to you.     And after we have finished

2    closing arguments, you will retire to deliberate.

3                  Y'all have done a fantastic job being

4    prompt and on time.    I appreciate that.    And so if you

5    can just keep it up so we can start right in promptly

6    at 8:30 tomorrow morning, that will be great.

7                  See you all tomorrow morning.

8                  (Jury excused from the courtroom.)

9                  THE COURT:     You may be seated.

10                 MR. PLUMMER:     Judge, can we have a

11   15-minute break before we start --

12                 THE COURT:     Oh, yes.   We are going to

13   talk about the schedule.     I'm not going to launch

14   immediately into any arguments.

15                 For those of you keeping score at home,

16   I may have given y'all a slight miscalculation.

17   Plaintiff and Intervenor used 6 hours, 52 minutes

18   total, including Ms. Wagner's rebuttal testimony.

19   Defendants used 3 hours, 57 minutes.      So for those of

20   you who want to use that as a benchmark for future

21   cases, there you go.

22                 MR. PLUMMER:     Judge, is there a software

23   program we can use for that?     Because that's a really

24   wonderful tool.

25                 THE COURT:     It's called Microsoft Excel.




                                                           001391
                                                                     198



1    I just set it up.    I have my own personal setup.       Some

2    judges use chess clocks.      I don't have a chess clock,

3    and sometimes when I get multiparty things chess

4    clocks don't work.   So basically, that's how it works.

5                   All right.     How much time do y'all need

6    to -- more time do y'all need to look at the charge

7    before we can have a charge conference?      I think we

8    will just do a charge conference so that, once I have

9    absorbed any rulings, I can get a final official

10   version of the charge out to you all before you leave

11   today so that you can prepare your closing arguments

12   and come in ready to go tomorrow morning.

13                  But, you know, is 30 minutes enough?        Do

14   you want a little longer?      It's just shy of 2:00

15   o'clock.   Understanding that I need y'all to be quick

16   in your objections and your requests so that I can

17   then turn something around.      Sometimes -- first of

18   all, I don't have a law clerk so I'm the one who is

19   going to be making these changes.      So I need to be

20   able to get it turned around and get the final version

21   back to you.   How much time do you need?

22                  MR. THWEATT:    I certainly do not need

23   more than half an hour.

24                  MR. SPARKS:    Same, Judge.

25                  MR. PLUMMER:    Same with us, Judge.




                                                            001392
                                                                  199



1                   THE COURT:     Okay.   We will come back in

2    at 2:30, and we will come back in and argue the

3    charge.

4                   (Recess.)

5                   THE COURT:     All right.   Turning to the

6    Charge of the Court --

7                   MR. PLUMMER:     Judge, before we do the

8    charge, could I make a real quick motion?

9                   THE COURT:     Yes, sure.

10                  MR. PLUMMER:     Judge, I want to move for

11   leave to amend our answer to explicitly include the

12   statute of limitations to conform to the evidence.

13   The evidence shows the necessary information for a

14   statute of limitations defense.       And to the extent

15   there is any ambiguity in our answer, we want to move

16   to amend to add that count.

17                  THE COURT:     Responses?

18                  MR. SPARKS:     Judge, we have already

19   rested.   We tried this case.     And you ruled on this

20   yesterday, if I am not mistaken.

21                  THE COURT:     I ruled on motions for

22   directed verdict.   He is asking for a trial amendment,

23   it sounds like to me.      All I did was deny his motion

24   for directed verdict.

25                  MR. SPARKS:     Yes, sir.




                                                            001393
                                                                      200



1                     THE COURT:     This is a different issue,

2    as to whether he gets to amend or not.          So any

3    response to his request for a trial amendment?

4                     MR. SPARKS:     Well, we certainly ask that

5    you deny it, Judge.     We have been laboring at this for

6    a very long time, as you are aware.        He came in late

7    and filed documentation.        I think it's totally unfair

8    to do it now.

9                     THE COURT:     Mr. Thweatt.

10                    MR. THWEATT:     Your Honor, we join in the

11   objection.     Well, I'm not sure I have standing since

12   this doesn't apply to me; but let me talk to

13   Mr. Sparks.

14                    THE COURT:     Are you asserting

15   limitations against both Plaintiffs?

16                    MR. PLUMMER:     No, Your Honor.    I'm

17   sorry.     I should have clarified that.       The evidence we

18   want to conform to is the evidence related to

19   Ms. James and Ms. Taylor's claim only.

20                    MR. SPARKS:     Judge, the issue is, you

21   know, he didn't object to any of this, he agreed to

22   it.   And now he is trying to assert a brand-new

23   defense.     We tried this by consent.     He didn't object

24   to it then.

25                    THE COURT:     I think he is arguing that




                                                                001394
                                                                    201



1    you all tried this by consent by not objecting to

2    evidence, and he's alleging that he should be allowed

3    to conform his pleadings to the evidence that he

4    claims was presented.     That's usually what the

5    argument is on a trial amendment.

6                  MR. SPARKS:     Judge, we think for them to

7    make that amendment now is certainly prejudicial.        And

8    it's by surprise.

9                  The other thing, Judge, when we were

10   talking about the tolling statute and the relation

11   back to this, Mr. Plummer never objected to any of

12   that.

13                 THE COURT:     Mr. Plummer, why wouldn't

14   Ms. James be surprised by this amendment?

15                 MR. PLUMMER:     The pleadings have alleged

16   limitations up to -- and there may be an ambiguity in

17   our amended answer that was filed last week and that

18   the Court permitted in.     And so I want to get rid of

19   the ambiguity and make it clear.     But limitations has

20   always been an issue.

21                 THE COURT:     I am going to deny the

22   motion.

23                 MR. PLUMMER:     Very well, Your Honor.

24                 THE COURT:     Anything else?

25                 MR. PLUMMER:     Not on that issue, Judge.




                                                           001395
                                                                    202



1    Thank you.

2                     MR. SPARKS:     Judge, the only other thing

3    is, there is a Rule 11 agreement we entered into that

4    I think we may have given you a copy of.

5                     THE COURT:     It's a stipulation relating

6    to the submission of medical charges?

7                     MR. SPARKS:     Yes, sir.

8                     THE COURT:     I have an unsigned copy of

9    it.     Is there anything I need to do about that, or are

10   you just filing it?

11                    MR. SPARKS:     We're just filing it.    We

12   have agreed to its admission.

13                    THE COURT:     You are admitting it as an

14   exhibit?

15                    MR. SPARKS:     Yes, sir.

16                    THE COURT:     Okay.

17                    MR. PLUMMER:     Judge, I don't think it

18   should be admitted as an exhibit that goes to the

19   jury.    I don't mind counsel telling the jury that he

20   has had those expenses and I don't mind the Court

21   instructing the jury in that regard, but I --

22                    THE COURT:     Do you want me to say that

23   it has been stipulated?

24                    MR. PLUMMER:     Yes.   I have no problem

25   with the Court saying that it has been stipulated he




                                                              001396
                                                                   203



1    has those expenses.     But for the actual Rule 11 to go

2    to the jury, I think it doesn't make sense.

3                   THE COURT:     All right.   I will allow you

4    to tell the jury that it's stipulated.

5                   All right.     Mr. Thweatt, what say the

6    Plaintiffs to the charge?

7                   MR. THWEATT:     Your Honor, we have no

8    objection to Question Number 1, we have no objection

9    to Question Number 2.

10                  With regard to Question Number 3,

11   Item f, "reasonable expenses of necessary medical care

12   that in reasonable probability Jenny Wagner will incur

13   in the future," we would request that that be deleted

14   and omitted.

15                  THE COURT:     So you are not going to seek

16   future medical?

17                  MR. THWEATT:     We are not.

18                  THE COURT:     All right.   That's fine.

19                  MR. THWEATT:     With regard to Question

20   Number 4, under Item b, I believe, Your Honor, instead

21   of Jenny Wagner it should say Tanya James there.

22                  THE COURT:     Thank you.

23                  MR. THWEATT:     Beyond that, we have no

24   objection.

25                  THE COURT:     That's Tanya with an O,




                                                          001397
                                                                     204



1    correct?

2                   MR. SPARKS:     Tanya with an A, Judge.

3                   THE COURT:     Oh, it's supposed to be with

4    an A throughout here?

5                   MR. SPARKS:     T-a-n-y-a.

6                   THE COURT:     Okay.   When you get the

7    signed version, you may want to make sure I have her

8    name spelled correctly throughout.         I will try to make

9    a global change of that.      So it's T-a-n-y-a?

10                  MR. SPARKS:     Yes, sir.

11                  THE COURT:     Okay.   All right.

12                  Mr. Sparks, what says Intervenor to the

13   charge?

14                  MR. THWEATT:     Your Honor, we only got

15   through the fourth question.

16                  THE COURT:     I thought you said you had

17   no more objections.

18                  MR. THWEATT:     No.   Question Number 5, we

19   have no objection.

20                  THE COURT:     All right.

21                  MR. THWEATT:     Question Number 6, it

22   looks like there is a formating or spacing issue on

23   Question 6.b and d, in the copy that I have.         It may

24   not be on your copy, Your Honor.       But we have no

25   objection --




                                                             001398
                                                                  205



1                     THE COURT:     I see it.   Thank you.

2                     MR. THWEATT:     We have no objection to

3    Question 7.

4                     On Question Number 8, Item b and d,

5    again there is a formating or spacing issue on the

6    copy that I have.     We have no objection to Question 8.

7                     Question Number 9, we have no objection.

8                     Question Number 10.b and d, again there

9    is a repeated spacing or formating issue on the copy

10   that I have; but I have no objection to the substance

11   of the question.

12                    Question Number 11, we have no

13   objection.

14                    Question Number 12.b and d, there is a

15   spacing or formating issue on the copy that I have;

16   but we have no substantive objection to that question.

17                    We object to Question 13 and

18   Question 14.

19                    THE COURT:     Grounds for your objection

20   to Questions 13 and 14?

21                    MR. THWEATT:     The grounds are these:

22   There is no evidence before this Court that speaks to

23   Esperanza Arzola's intent at the time that this act

24   was committed.     And that, of course, is a central

25   question under the definition that this Court has




                                                              001399
                                                                   206



1    provided.     It reads, "A person commits arson if the

2    person starts a fire, regardless of whether the fire

3    continues after ignition or causes an explosion, with

4    the intent to destroy or damage."

5                     I specifically asked Ms. Uduma whether

6    she had spoken to Ms. Arzola.      She told us that she

7    had not.    Therefore, she has no personal knowledge of

8    what Ms. Arzola's intent would have been at the time

9    of the act.

10                    Dr. Karen Gollaher testified in this

11   case that Ms. Arzola was incapable of reciting her

12   ABCs, that she was hallucinating, that she had a

13   history of psychosis, of suicidal ideations, of

14   depression, bipolar schizophrenia.        She also told us,

15   of course, that she was deemed incompetent to stand

16   trial at the criminal proceeding.

17                    If anything, there is an abundance of

18   evidence that Ms. Arzola was not capable of forming

19   the mens rea, or the intent as the Court has defined

20   it in the instructions, that she -- that it was her --

21   that it was Ms. Arzola's conscious objective or desire

22   to engage in the conduct or cause the result.        We

23   don't believe there is any evidence to support that,

24   and that's the basis of our objection.

25                    THE COURT:   Response.




                                                           001400
                                                                    207



1                   MR. RAVAL:    Responding to the objection

2    to Questions 13 and 14, there has been evidence with

3    regard to some of the issues relating to the question

4    on arson.   Specifically, arson in the definition

5    requires here, under part 2.a, "knowing that it is

6    within the limits of an incorporated city or town."        I

7    believe there was evidence that Ms. Arzola understood,

8    she knew where the house she lived was and understood

9    that what burned was the house in which she lived.

10                  THE COURT:    The objection was that there

11   was no evidence of intent.     So let's focus on the

12   parts of these criminal violations that require intent

13   as opposed to knowingness or recklessness.

14                  MR. RAVAL:    As to intent, I believe the

15   intent can be deduced from the circumstances.      You can

16   have circumstantial evidence of intent rather than

17   simply what the person themselves knew or testified

18   to.

19                  And whether or not she was deemed

20   competent to stand trial at the criminal proceeding,

21   we can still refer to circumstantial evidence

22   regarding how the lighter was kept, which is to say it

23   was hidden away in her bra, that she understood that a

24   fire had been started in the home and she was the one

25   who started it.   That is sufficient evidence regarding




                                                         001401
                                                                 208



1    intent with regard to all these elements.

2                  With regard to arson specifically, I

3    point to 2.a, simply knowing that a building is within

4    the limits of a city or a town is enough for intent

5    under that definition of arson.

6                  THE COURT:     Well, let's look at the very

7    beginning of the definition of arson.     It says, "A

8    person commits arson if the person starts a fire,

9    regardless of whether the fire continues after

10   ignition or causes an explosion, with the intent to

11   destroy or damage."     What evidence do I have of intent

12   to destroy or damage?

13                 MR. RAVAL:     Your Honor, I believe there

14   was evidence that Ms. Arzola understood that she was

15   burning down the house in which she lived.     That

16   evidence is the intent to destroy or damage the

17   property of another.

18                 THE COURT:     You are saying I have

19   evidence at the time the fire occurred that she

20   understood that she was burning it down, or are you

21   talking about evidence that afterwards she understood

22   that the fire had consumed the building?

23                 MR. RAVAL:     Whether or not she knew at

24   the time she was interviewed by Dr. Gollaher what had

25   happened or what her actions were, if we turn back to




                                                           001402
                                                               209



1    the point in time when the fire occurred and when she

2    was outside just at that time, I believe the evidence

3    showed, and I think it was Ms. Udemezue who said that

4    she was aware that she either started the fire by

5    burning a sheet in the bed -- in the room or that she

6    had a lighter and was the one who started the fire.

7    The fact that she knew that --

8                  THE COURT:   Would there be any different

9    reaction if, as opposed to intentionally lighting a

10   sheet on fire, she was lighting a cigarette and it

11   fell and she knew she had started a fire that burned

12   down the house?   I mean, what can I take from that

13   testimony, if that is in the record, that shows an

14   intent to destroy or damage as opposed to an

15   acknowledgment that she understood that whatever she

16   had done, it had caused the fire?

17                 MR. RAVAL:   I believe the evidence, Your

18   Honor, is the intent to damage the building.      So if

19   she had -- if, if there was evidence that she had

20   mistakenly dropped a cigarette or mistakenly dropped a

21   lighter or that she didn't intend to do that, that

22   might be a little bit different.    But I think

23   Dr. Gollaher's deposition excerpts demonstrated that

24   Ms. Arzola understood that she started the fire.

25                 THE COURT:   I realize that.   But what




                                                        001403
                                                                  210



1    does that say -- if someone started a fire, you can

2    recognize that you started a fire accidentally or you

3    can recognize you started a fire intentionally.       Just

4    recognizing that you started a fire doesn't tell me

5    whether or not that that fire starter did it with

6    intent or did it, like I said, accidentally.     What do

7    I have that tells me that she had an intent to destroy

8    or damage?

9                  MR. RAVAL:     I believe Ms. Udemezue

10   testified that at the time of the fire or just before

11   the time of the fire, earlier that evening, Ms. Arzola

12   was upset with Ms. Udemezue, was upset with her

13   caretaker.   And based on the series of actions and

14   events that led up to the time of the fire, I think we

15   can use that evidence circumstantially to demonstrate

16   that Ms. Arzola's setting of the fire was not an

17   accident.

18                 THE COURT:     Mr. Thweatt.

19                 MR. THWEATT:     Your Honor, Mr. Plummer

20   made a very big point in this trial that Ms. Arzola

21   had no history of pyromania or starting fires or

22   anything like that.   I think that's important when you

23   consider this question.    The fact that she was upset

24   prior to the fire for any reason is not definitive

25   evidence of what her mental state, what her mens rea




                                                           001404
                                                                     211



1    was at the time she had that cigarette lighter in her

2    hand and she set that mattress aflame.      That's what

3    they require in order for a conviction in a criminal

4    proceeding, in addition to all the findings of mental

5    competency.

6                     But she does not -- they do not --

7    counsel's belief that there was evidence is not

8    evidence.     There is either evidence on that issue or

9    there isn't.     And the only thing he said was that she

10   was upset.     We don't know why she was upset, we don't

11   know the response that she had to that anger, to being

12   upset.   We don't know if that's causally linked, the

13   fact that she was upset.      We don't know if -- there is

14   no evidence that causally links that, the fact that

15   she was upset, to the fire being started.         There is no

16   evidence before this Court that Ms. Arzola intended to

17   destroy or damage.

18                    THE COURT:   Reply, Mr. Raval?

19                    MR. RAVAL:   Your Honor, Ms. Udemezue

20   testified that before the fire took place, Ms. Arzola

21   was upset with her for a variety of reasons.         I

22   believe she then testified -- and maybe I am using the

23   wrong phrase -- I think she then testified that after

24   Ms. Arzola became upset with Ms. Udemezue she

25   retreated to her room and started the fire.         That is




                                                              001405
                                                                     212



1    evidence, circumstantial evidence but still evidence,

2    that she intended to start the fire and that the

3    starting of the fire was not an accident.

4                     THE COURT:     The objection is overruled.

5                     Anything else, Mr. Thweatt?

6                     MR. THWEATT:     No, Your -- I have the

7    same objection for both 13 and 14.         I don't know if I

8    urged that.   If I didn't --

9                     THE COURT:     Right.   I understood that as

10   an objection to evidence of intent as to 13 and 14.

11   And that objection as to both questions is overruled.

12                    MR. THWEATT:     Beyond that, no further

13   objections.

14                    THE COURT:     Mr. Sparks, what say

15   Interventors to the charge?

16                    MR. SPARKS:     I think that Mr. Thweatt

17   has pointed out to you some of the things that we had

18   concern about in reference to Question 4, which you

19   have noted, in terms of the Jenny Wagner and Tanya

20   James matter; and we have discussed that.

21                    The other matters, housekeeping as far

22   as the b and d on Questions 8 and the others.

23                    On the issue of 13 and 14, we also

24   object, Judge.     And I just want to point out that we

25   have all indicated what Ms. Amuche said that happened,




                                                            001406
                                                                     213



1    but in reality that's not true.     What happened was,

2    she was upset and she went and kicked the window.         And

3    after kicking the window, when she was going to give

4    some medication to her foot, she calmed down.       She

5    watched TV.   She gave her some medication.      She went

6    back.   And it was sometime thereafter that the fire

7    started.

8                   I just want to share with the Court that

9    with individuals, in terms of trying to identify

10   intent, we have to take them as we find them.       We have

11   heard a substantial amount of evidence that Esperanza

12   Arzola was a very troubled person, Judge, in that she

13   was under a tremendous amount of medication all the

14   time.   And there's nothing to say that she had the

15   intent to commit this act, and she certainly had no

16   history of committing a particular act of this nature.

17   So to say that she intentionally committed an arson or

18   did destruction to the property with the conscious

19   idea to cause this destruction, I don't think that is

20   what the evidence shows.     And I also, like

21   Mr. Thweatt, urge that 13 and 14 be stricken.

22                  THE COURT:    All right.    Same ruling.

23   The objection is overruled.

24                  Anything else, Mr. Sparks?

25                  MR. SPARKS:    No, Judge.




                                                          001407
                                                                     214



1                     THE COURT:     All right.    Mr. Raval, what

2    says defense to the charge?

3                     MR. RAVAL:     Your Honor, we are fine with

4    the instructions.

5                     As to Question 1, we would request a

6    different definition of negligence and definition of

7    ordinary care.     Plaintiffs' proposed jury

8    instructions and their amended charge -- and we'll

9    submit the same in a moment -- have one change.          And

10   that is, our proposed definition is, "You are

11   instructed that negligence means failure to use

12   ordinary care; that is, failing to do that which a

13   person or company of ordinary prudence," and the rest

14   of the definition would be the same.          For ordinary

15   care, we would also add in "person or company of

16   ordinary prudence."

17                    MR. PLUMMER:     Let me give the Court a

18   copy of that.

19                    (Referenced document tendered to the

20                    Court.)

21                    THE COURT:     Response?

22                    MR. THWEATT:     I have no objection to

23   that, Your Honor.

24                    THE COURT:     Mr. Sparks.

25                    MR. SPARKS:     Yes, sir, Judge.    We don't




                                                             001408
                                                                    215



1    have a premises claim against the company.        It's

2    against the owner.

3                  THE COURT:     Do you have any claim

4    against the company, or are you just suing Ms. Uduma?

5                  MR. SPARKS:     We will withdraw the

6    objection, Judge.

7                  THE COURT:     All right.   So that request

8    will be granted, and I will make that change.

9                  MR. RAVAL:     Aside from that, Your Honor,

10   and just making sure that we are clear on Question 3,

11   part f, being withdrawn, aside from that, we have no

12   objections to any of the questions.

13                 THE COURT:     Anything else?

14                 MR. RAVAL:     That's all, Your Honor.

15                 THE COURT:     Okay.   All right.    So let me

16   go make these changes.     I will get copies out to you

17   all.

18                 What I would ask you to do is, before

19   you leave the courtroom once I get the final version

20   out to you, is look it over to make sure that I got

21   all the corrections that y'all understood I was going

22   to make and take 15 minutes to proof it.      And then if

23   there was something, a misspelling or I missed a

24   formating thing or forgot to put the word "company" in

25   one of those instructions, I will fix that so that




                                                              001409
                                                                  216



1    y'all have a final final version to go home and

2    rehearse your closing arguments with.         All right?

3                   When I come back, we will talk about how

4    long y'all need for closing argument as well, so you

5    can be thinking about that.      All right.

6                   (Recess.)

7                   THE COURT:     Mr. Thweatt, how much time

8    do you need for closing arguments?

9                   MR. THWEATT:     I would like 30 minutes

10   for the initial argument and then 15 minutes for

11   rebuttal, Your Honor.      I don't know that I will use

12   all of that, but that's what I would request.

13                  THE COURT:     Mr. Sparks -- and that's for

14   yourself, that's not splitting with Mr. Sparks?

15                  MR. THWEATT:     That's correct.

16                  THE COURT:     Mr. Sparks, how much time

17   are you asking for in closing argument?

18                  MR. SPARKS:     Judge, I figure 20 minutes.

19                  THE COURT:     Do you want to split that

20   between opening and rebuttal or --

21                  MR. SPARKS:     Well, now, what I think

22   about rebuttal, I would like to split 30, if I could,

23   Judge.

24                  THE COURT:     How do you want to split it?

25   You tell me.




                                                            001410
                                                                    217



1                   MR. SPARKS:     I would like to do possibly

2    20 and then reserve 10.

3                   THE COURT:     Mr. Raval.

4                   MR. RAVAL:     I think we would probably

5    use about 40 to 45 minutes, and we would probably be

6    giving some time back.

7                   THE COURT:     All right.     45 minutes for

8    Plaintiff.    You want to split it 30, 15?

9                   MR. THWEATT:     Yes, Your Honor.

10                  THE COURT:     With a five-minute warning?

11                  MR. THWEATT:     Thank you.     That would be

12   fine.

13                  THE COURT:     And then, Mr. Sparks, you

14   were asking for 20 and 10?

15                  MR. SPARKS:     Yes, sir.

16                  THE COURT:     And do you want a

17   five-minute warning?

18                  MR. SPARKS:     Yes, sir.

19                  THE COURT:     And then defense gets

20   45 minutes.    And you want a warning?

21                  MR. RAVAL:     If we could get a ten-minute

22   warning.

23                  THE COURT:     All right.

24                  The way this will shake out, we will

25   probably -- we are probably going to have to take a




                                                            001411
                                                                      218



1    mid-morning break in the middle of closing argument.

2    We're not going to go all the way through.           Since I

3    don't know how long it's going to take me to read the

4    charge, it's hard to predict exactly when that break

5    will be.     I will probably break us after Mr. Sparks

6    has finished his initial opening and before defense

7    gives their closing argument.          We will break, come

8    back, defense will give their closing argument.           Then

9    Mr. Thweatt and Mr. Sparks will give rebuttal

10   arguments.

11                    Does that make sense to everyone?

12                    MR. THWEATT:     Yes, Your Honor.

13                    THE COURT:     All right.    And did Alex

14   hand out the charges to you all?

15                    MR. THWEATT:     Yes, sir.

16                    THE COURT:     If you could just proofread

17   them and let Lois or Quee or someone know if you find

18   a correction that I forgot to make, and I will fix

19   that.

20                    MR. THWEATT:     Your Honor.

21                    THE COURT:     Yes.

22                    MR. THWEATT:     Pursuant to the court

23   reporter's instructions, we were reviewing the

24   exhibits to make sure that everything appropriate was

25   there and anything inappropriate was out.          In




                                                             001412
                                                                 219



1    reviewing that, I found Plaintiffs' Exhibit 52, which

2    is one of our designated experts, Edward Anthony

3    Corral's resume.     We didn't call him so I am

4    withdrawing that exhibit now.     Opposing counsel has

5    indicated that they have no objection to that.      So we

6    have a removed it from our exhibits.      I just wanted

7    the Court to know.

8                   THE COURT:    All right.   Thank you for

9    reminding me about that.

10                  Y'all are responsible for marshaling

11   your own exhibits and doublechecking opposing side's

12   exhibits.   It is not the reporter's job.     You need to

13   make sure you have all the exhibits with her.      The

14   exhibits stay with her, so if you need to use any

15   during closing arguments, you need to use your own

16   copies or figure out how you are going to do that.

17                  Once we are done with closing arguments,

18   the jury will deliberate.     They set the schedule; so

19   we break when they break, and we will let you know

20   when they break.     I require at least one lawyer for

21   each party to be in the courtroom while the jury is

22   deliberating or in the attorney ready rooms or if you

23   need to step out to the restroom, that's fine.      I

24   don't want anybody going out to the cafeteria or to

25   your car, just in case we get a question from the




                                                         001413
                                                                      220



1    jury, we can respond to it quickly.       Or if we get a

2    verdict quickly, we can respond to it.       So that's how

3    things will go tomorrow.

4                  MR. THWEATT:     Thank you, Your Honor.

5                  THE COURT:     All right.    Let me know if

6    there is anything I need to come back out here and

7    correct from our charge conference.       I will be up here

8    for a few more minutes.     See y'all tomorrow.

9                  MR. THWEATT:     Thank you, Your Honor.

10                 MR. RAVAL:     Thank you, Your Honor.

11                 (Recess.)

12                 MR. THWEATT:     This is Lee Thweatt,

13   counsel for Plaintiff in this case.       I have reviewed

14   all of the Defendants' admitted trial exhibits and

15   found them to be appropriate and appropriately

16   redacted.

17                 MR. SPARKS:     Shelton Sparks for the

18   Intervenor.   We have looked at the same documents and

19   concur with the determination made by Mr. Thweatt.

20   The trial exhibits are appropriately admitted.

21                 MR. RAVAL:     I'm Raval, counsel for

22   Defendants.   We have reviewed Plaintiff's exhibits and

23   Intervenor's exhibits and find them appropriately

24   redacted and admitted for submission to the jury.          And

25   our own as well.




                                                           001414
                                                             221



1                  MR. SPARKS:    And our own as well.

2                  MR. THWEATT:    And I have reviewed the

3    Plaintiff's exhibits.   They are fine.

4                  (Conclusion of proceedings for the

5                  day.)

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                                         001415
                                                              222



1    THE STATE OF TEXAS

2    COUNTY   OF   HARRIS

3

4                  I, Kathleen Keese, Official Court
     Reporter in and for the 269th District Court of Harris
5    County, State of Texas, do hereby certify that the
     above and foregoing contains a true and correct
6    transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the
7    parties to be included in this volume of the Reporter's
     Record, in the above-styled and numbered cause, all of
8    which occurred in open court or in chambers and were
     reported by me.
9
                   I further certify that this Reporter's
10   Record of the proceedings truly and correctly reflects
     the exhibits, if any, admitted by the respective
11   parties.

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

14   __________________________________________________.

15
                   WITNESS MY OFFICIAL HAND this the
16   29th day of December, 2011.

17

18
                          /s/ Kathleen Keese
19                   ______________________________

20                   KATHLEEN KEESE
                     TEXAS CSR NO. 758
21                   Expiration: 12/31/12
                     Official Court Reporter
22                   269th District Court
                     201 Caroline, 13th Floor
23                   Houston, Texas 77002

24

25




                                                       001416
                                                                  1



1                           VOLUME 1 OF 1
                          REPORTER'S RECORD
2                        CAUSE NO. 2009-40925

3    PATTI WAGNER, AS GUARDIAN  *     IN THE DISTRICT COURT OF
     OF JENNY ANN WAGNER, AN    *
4    INCAPACITATED ADULT        *
         Plaintiff              *
5                               *
     And                        *
6                               *
     WYLETTE TAYLOR AS GUARDIAN *
7    OF DERRICK JAMES, AN       *
     INCAPACITATED ADULT        *
8        Intervenor,            *
                                *
9    VS.                        *     HARRIS COUNTY, T E X A S
                                *
10   FOUR J'S COMMUNITY LIVING *
     CENTER, INC., ANTHONIA     *
11   UDUMA AND GODFREY UDUMA    *
         Defendants.            *     269TH   JUDICIAL DISTRICT
12

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

15

16                    On the 13th day of January, 2012, the

17   following proceedings came on to be heard in the

18   above-entitled and numbered cause before the Honorable

19   Dan Hinde, Judge Presiding, held in Houston, Harris

20   County, Texas.    Proceedings reported by stenographic

21   machine shorthand.

22

23

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




                                                         001417
                                                    2



1    A P P E A R A N C E S:

2

3    Mr. L. Lee Thweatt
     SBN: 24008160
4    Mr. Joseph D. Terry
     SBN: 24013618
5    TERRY & THWEATT, P.C.
     One Greenway Plaza, Suite 100
6    Houston, Texas 77046-0102
     713.600.4710
7
     Mr. Russell S. Post
8    SBN: 00797258
     Mr. Robert H. Ford
9    SBN: 24074219
     BECK REDDEN & SECREST
10   1221 McKinney, Suite 4500
     Houston, Texas 77010
11   713.951.3700

12   COUNSEL FOR PLAINTIFF

13

14   Mr. Shelton Sparks
     SBN: 06507160
15   SHELTON SPARKS & ASSOCIATES, L.L.C.
     706 Cordell Street
16   Houston, Texas 77009
     713.862.5533
17
     Ms. Tiffany C. Harvey
18   SBN: 24067343
     THE LAW OFFICE OF TIFFANY HARVEY
19   706 Cordell Street
     Houston, Texas 77009
20   832.498.7076

21   COUNSEL FOR INTERVENOR

22

23

24

25




                                           001418
                                               3



1    A P P E A R A N C E S:

2
     Mr. James C. Plummer
3    SBN: 16075700
     Mr. Amar Raval
4    SBN: 24046682
     PLUMMER & KUYKENDALL
5    4203 Montrose Blvd., Suite 270
     Houston, Texas 77006
6    713.522.2887

7    Mr. David W. Holman
     SBN: 09902500
8    THE HOLMAN LAW FIRM, PC
     24 Greenway Plaza, Suite 2000
9    Houston, Texas 77046
     713.400.4840
10
     COUNSEL FOR DEFENDANTS
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                      001419
                                                              4



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

3

4                                                      Page

5    PROCEEDINGS .................................        5

6    Calling of case .............................        5

7    Appearances of Counsel ......................        5

8    Plaintiff and Intervenor's Joint
     Motion for Entry of Judgment ................        6
9

10   Ruling of the Court .........................       69

11   Court Reporter's Certification ..............       75

12

13                       * * * * * * * *

14

15

16

17

18

19

20

21

22

23

24

25




                                                     001420
                                                                    5



1                      P R O C E E D I N G S

2                  THE COURT:     The Court calls Cause Number

3    2009-40925. Patti J. Wagner versus Four J's Community

4    Living Center, Inc.

5                  Can I have appearances of counsel for

6    the record, please.

7                  MR. POST:     Your Honor, on     behalf of the

8    Plaintiff, Ms. Wagner, Russell Post.

9                  MR. THWEATT:     Lee Thweatt, Jim Terry on

10   behalf of the Plaintiff, Ms. Wagner.

11                 MR. FORD:     Robert Ford on behalf of

12   the Plaintiff, Ms. Wagner.

13                 MS. HARVEY:     Tiffany Harvey for the

14   Intervenor.

15                 MR. SPARKS:     Shelton Sparks for the

16   Intervenor.

17                 MR. HOLMAN:     David Holman on behalf of

18   the Defendants.

19                 MR. PLUMMER:     Jim Plummer on behalf of

20   the Defendants, Your Honor.

21                 THE COURT:     Good afternoon.     I

22   appreciate y'all's patience, as a couple of the

23   earlier hearings went a little longer.       So thank you

24   for your patience.

25                 We're here on the Plaintiff and




                                                          001421
                                                                    6



1    Intervenor's Joint Motion for Entry of Judgment.

2    We've got a lot of substantial briefing on this.        I

3    have read the motion and the response and the reply

4    and looked at the cases.        So that's just to give y'all

5    a heads up on that.     But this is the Plaintiff and

6    Intervenor's motion, so I will let you all proceed

7    first.

8                     MR. POST:     Your Honor, I appreciate it

9    and I'm happy to proceed in whatever way is simplest

10   for the Court.     We have a very straightforward motion

11   for entry of judgment on the verdict.        It seems to me

12   it might make sense to allow Mr. Holman to present his

13   substantive challenges, and it may be more efficient

14   for the Court for us to respond to his argument.

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

16   prefer.

17                    THE COURT:     Would you like to go first,

18   Mr. Holman?

19                    MR. HOLMAN:     Sure.

20                    THE COURT:     All right.

21                    MR. HOLMAN:     Your Honor, we saw

22   their motion for entry of judgment on the verdict;

23   and there were a couple of problems that we saw

24   initially.    Number one, if Chapter 74 applies, then

25   the damages must be reduced, the noneconomic damages,




                                                           001422
                                                                   7



1    must be reduced from $14 million down to $250,000 per

2    claimant.   Number two, they were asking for judgment

3    against Ms. Uduma personally; and there is no basis

4    for judgment against Ms. Uduma personally.       Let me

5    address those in order.

6                    First, the question of whether

7    Chapter 74 applies.    As you know, this issue was

8    raised pretrial.    Mr. Plummer filed a motion to amend

9    his answers to allow him to assert Chapter 74, which

10   the Court recognized was relevant as to the damage

11   caps.   They -- the Plaintiff and the Intervenor filed

12   motions to strike that amended answer, and the Court

13   took that up.    The Court allowed that amended answer,

14   and so Chapter 74 is in the case.

15                   Now, does Chapter 74 apply?   We think

16   that there is no question Chapter 74 applies; and let

17   me go through the analysis, if I can.    First of all,

18   there is in black and white in the Civil Practice and

19   Remedies Code a statement about what constitutes a

20   health care institution.    And it says that a

21   health care institution is "a home and

22   community-based services waiver program for persons

23   with mental retardation adopted in accordance with

24   Section 1915(c) of the federal Social Security Act, as

25   amended."




                                                          001423
                                                                  8



1                   Now, there is no dispute in this record

2    that Four J's is a home and community-based services

3    program for the treatment of mentally retarded

4    persons, as authorized by DADS under the charter of

5    the State of Texas.   The reason that there is no

6    dispute about that is that every single document --

7    almost every single document discusses that Four J's

8    is a home and community-based services program.     There

9    is -- we presented the Court in our response to -- to

10   the brief filed by the Plaintiff, Wagner, we filed

11   excerpts from all the exhibits that talk about

12   Four J's being a home and community-based services

13   program, an HCS program, for mentionly retarded

14   adults.

15                  Then there was -- we also presented the

16   Court with the reference to the testimony of Ms.

17   Wagner, who said that she was putting Jenny into --

18   transferring Jenny to Four J's which was an HCS

19   program.   We also presented the Court with references

20   to the testimony of other folks, such as Ms. Uduma,

21   Ms. Obichuku and Mr. Kern, all of whom testified about

22   HCS and HCS policies and also the regulation by DADS.

23                  We also presented the Court with the

24   reference to Mr. Kern's expert report in which

25   Mr. Kern said Four J's is a home and community-based




                                                         001424
                                                                     9



1    services program, services facility, HCS facility.

2                    The Texas Administrative Code 40, Texas

3    Administrative Code 9.153 defines an HCS program as a

4    home and community-based services waiver program as

5    authorized by Section 1915(c) of the Social Security

6    Act.

7                    THE COURT:    What provision is that

8    again?

9                    MR. HOLMAN:    That's 40,

10   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

15   the other administrative code provision which further

16   defines the HCS program; and that is 9.154(a), which

17   states, "The HCS Program is a Medicaid waiver program

18   approved by the Centers for Medicare and Medicaid

19   Services (CMS) pursuant to 1915(c) of the Social

20   Security Act.     It provides community-based services

21   and supports to eligible individuals as an alternative

22   to the ICF/MR Program," which is the intermediate

23   facility program.     That would be similar to the state

24   school program.     "The HCS Program is operated by DADS

25   under the authority of HHSC."      That's in the 40, Texas




                                                            001425
                                                                10



1    Administrative Code, Section 9.154(a).

2                   Now, so there is no dispute that

3    Four J's -- and there was never any dispute in the

4    record of this case during the trial of the case --

5    that Four J's operated as a home and

6    community-based waiver program under DADS.

7                   It is clear under Section

8    74.001(a)(11)(I) that "a home and community-based

9    services waiver program for persons with mental

10   retardation adopted in accordance with Section 1915(c)

11   of the federal Social Security Act," is a health care

12   institution.   And then we turn to the next section

13   which defines a health care provider; and a health

14   care provider is defined as including, under

15   (12)(A)(vii), "a health care institution."     So if you

16   are a health care institution you qualify as a health

17   care provider under Chapter 74.   Thus, we don't think

18   that there is any dispute in the record and there can

19   be no dispute in the record that Chapter 74 applies to

20   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

22   held in the same way.   They have held that the --

23   the -- the nature of this entity is a home and

24   community-based services program for mentally retarded

25   adults; and, therefore, it is a health care provider.




                                                       001426
                                                                11



1                    Now, the more difficult question for you

2    is whether Ms. Uduma is a health care provider.     Now,

3    on a blank slate, if this were being written on a

4    blank slate, there could be no question that as a

5    matter of law Ms. Uduma is a health care provider.

6    And the reason for that is that the statute in

7    unmistakeable terms says that an owner, a director, an

8    employee of a health care provider is a health care

9    provider.   We know from the undisputed testimony that

10   was given by both the Plaintiffs and the Defendants in

11   the trial of this case that Ms. Uduma is the owner of

12   Four J's and she is the CEO of Four J's and that she

13   is the president of Four J's.    So she would qualify,

14   on a blank slate, as a health care provider under this

15   statute, no question.

16                   The question arises because at the time

17   that the Court in pretrial was wrestling with the

18   issue of whether to grant the motion to amend,

19   the Court -- they raised the question about whether

20   Chapter 74 applied to Ms. Uduma because the

21   argument -- our argument was that she was being sued

22   as a premises owner.    Mr. Plummer said, I agree with

23   you, I don't think Chapter 74 applies.    And he

24   went further.   He said, we are not going to assert any

25   remedies, any rights, defenses for Ms. Uduma under




                                                        001427
                                                                  12



1    Chapter 74.

2                   Now, they have taken the position that

3    that is a judicial admission and that bars him from --

4    bars Ms. Uduma from arguing that she is a health care

5    provider under Chapter 74.      I was troubled by the

6    statements that Mr. Plummer made as well.      And, you

7    know, I made no secret of that to Mr. Plummer when

8    I saw it because I thought:      Well, gosh, you know, you

9    made these statements; the Court heard these

10   statements.   But then I started looking into the law

11   of judicial admission.      The law of judicial admission

12   is that you can judicially admit a fact but you can't

13   judicially admit a matter of law.      The idea is, I

14   can't judicially admit, for example, that the Tort

15   Claims Act doesn't apply to the City of Houston.

16   That's not subject to judicial admission because it is

17   a question of law.

18                  THE COURT:     Step away from the Tort

19   Claims Act because that brings in the issues of

20   sovereign immunity which also brings in the issues of

21   jurisdiction --

22                  MR. HOLMAN:     Sure.

23                  THE COURT:     Give me a different example.

24                  MR. HOLMAN:     Let me give you a different

25   example.   There is a case that we cited where there




                                                         001428
                                                                     13



1    were deemed admissions, and one of the deemed

2    admissions was that the defendant breached the

3    contract.   Another one of the deemed admissions was

4    that defendant owed a commission.      And the

5    Court looked at that as judicial admission and said it

6    doesn't qualify as a judicial admission because it's

7    admitting a question of law.      And you can't, in

8    judicial admission, admit a question of law.         So those

9    deemed admissions, the Court said, were of no effect.

10                  We cited a number of other cases --

11                  THE COURT:     So lawyers who make

12   arguments in court can't bind their clients as to the

13   concessions they make?      Say you are in oral argument

14   and you concede that, well, Your Honor, yes, this law

15   does not apply in this context.      They can't be bound

16   by that concession?

17                  MR. HOLMAN:     Well, you know, I -- and

18   that's what I had trouble with, as well.         I mean,

19   frankly, I was -- I was troubled with the idea of

20   Mr. Plummer representing to you that Chapter 74 didn't

21   apply in that situation.      What I did was I looked at

22   it under the concept of judicial admission.         If -- if

23   I were to judicially admit, as, you know, Mr. Plummer

24   did, that Chapter 74 doesn't apply to Ms. Uduma

25   and Chapter 74 as a matter of law applies to




                                                            001429
                                                                14



1    Ms. Uduma, I don't think that judicial admission has

2    any effect.   I think you can in certain circumstances,

3    you -- you can simplify your case by eliminating

4    certain claims and that sort of thing.    Certainly, you

5    know, there are ways you can stipulate and abandon and

6    do Rule 11 agreements and all kinds of things.

7                  THE COURT:    What's your response,

8    though, to Plaintiff and Intervenor's argument that,

9    well, if Mr. Plummer hadn't said that we would have

10   accepted the Court's offer to continue trial because

11   that did shape our trial strategy and the way we

12   approached presenting evidence and arguing to the

13   jury?

14                 MR. HOLMAN:    I, you know -- frankly, I

15   have no response to that.    I think that -- that

16   probably -- were I arguing on their behalf, I would

17   probably argue judicial estoppel.    I would say that,

18   you know, they relied upon that because he made that

19   statement and therefore he should be judicially

20   estopped from taking the contrary position.    But, you

21   know, the argument that they made was judicial

22   admission; and, you know, frankly, I'm just addressing

23   the argument that they made.

24                 I believe that what we have to do is

25   look at the statute.   And, you know, if we are going




                                                         001430
                                                                15



1    to hold that Four J's is indisputably a health care

2    provider, which I think we have to do, then the

3    question is:   Is the owner of Four J's subject

4    to Chapter 74 or not?

5                   I think Mr. Plummer's problem was that

6    when he looked at it he was thinking that they were

7    suing her as a premises owner and that fell outside

8    the statute.   And, you know, I think there was some

9    confusion on his part, perhaps; but I don't think that

10   that changes the nature of how the statute applies.

11   But --

12                  THE COURT:    Well, let me just stop you

13   there.

14                  MR. HOLMAN:    Okay.

15                  THE COURT:    What record suggests that

16   they were not suing her as the premises owner?

17                  MR. HOLMAN:    Nothing.

18                  THE COURT:    Then why do -- why do

19   we care about whether Chapter 74 applies?

20                  MR. HOLMAN:    Well, because if she is

21   a health care provider then it becomes a health care

22   liability claim even though they are suing her as,

23   quote, a premises owner.

24                  THE COURT:    How is that?   How is she a

25   health care provider as a premises owner?




                                                          001431
                                                                  16



1                   MR. HOLMAN:     Because -- well, Four J's

2    is a health care provider.      She, being an employee,

3    whatever, of Four J's is a health care provider.      If

4    they sue her for her failure to provide safety for the

5    people that were the residents, the patients, then

6    that's a health care liability claim.      You know, we

7    presented those -- all of these cases that talk about

8    health care liability claims and what constitutes a

9    health care liability claim.      And there is a number of

10   cases, including the Marks case that they rely upon

11   and the Omaha Healthcare case, the spider bite case,

12   that the Court is familiar with, where the Court

13   said -- where they tried to make the distinction,

14   well, it's just a premises claim, it's not a health

15   care liability claim.     And the Court said, no, it's a

16   health care liability claim because the central focus

17   of this claim, the underlying nature of the claim is

18   that you are suing them for failing to provide safety

19   for the residents.

20                  THE COURT:     So if someone -- let's take

21   a nurse.   She owns her own house.     Someone trips and

22   falls in the house and scrapes their knee.      And she

23   goes, "Oh, wait.     I've got the Bactine in my first aid

24   kit and the Band-Aid."      She goes and disenfects it,

25   puts a Band-Aid on it.      But, unbeknownst to the person




                                                         001432
                                                                  17



1    who is injured, the house is infected with staph; and

2    he comes down with a staph infection.      And he files a

3    premises liability case, defective condition, that the

4    house had a staph infection.     The very fact that, just

5    because she is a nurse, she would not be subject to

6    the ordinary premises liability standards for whether

7    or not she was liable for, you know, failing to warn

8    and make safe her staph-infected house?

9                   MR. HOLMAN:    Well, you know,   I think if

10   you have a situation where you have a nurse and there

11   is a premises problem, somebody falling --

12                  THE COURT:    And add in that she works

13   for a hospital --

14                  MR. HOLMAN:    Okay.

15                  THE COURT:    -- a health care

16   institution.

17                  MR. HOLMAN:    Right.   And somebody falls

18   down in her house.   That is a, definitely, a premises

19   claim.

20                  THE COURT:    She is an employee of

21   the health care institution.

22                  MR. HOLMAN:    Yes.

23                  THE COURT:    She is a health care

24   provider.

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




                                                          001433
                                                                 18



1    at the underlying nature of the claim.     The

2    underlying nature of their claim is they're claiming

3    that these folks were residents of the entity which is

4    a health care provider and that these folks were not

5    provided safety.

6                    The best case on this -- and, you know,

7    I discussed it in the brief; but, you know, it was

8    discussed pretrial, which is the brown recluse spider

9    case.   What happened is it's a nursing home, and a

10   spider bit one of the residents.     And the plaintiff

11   sued saying, "Well, you didn't do proper pest control.

12   And, you know, you should have prevented spiders from

13   getting in here."     And that's a premises claim.

14                   The Court analyzed that and they said,

15   "Look, if somebody is in your -- in your facility and

16   they are in custodial care in your facility and you

17   are responsible for providing their fundamental

18   needs --" What are their fundamental needs?      Health

19   and safety.     And if your argument is you didn't

20   provide them safety, then that's a health care

21   liability claim.     And that's what we're -- that's what

22   we're faced with here.

23                   The arguments and all of

24   their arguments, the underlying nature of all their

25   arguments is:    They were patients and you




                                                          001434
                                                                    19



1    didn't provide them safety from the fire that

2    occurred.    You didn't provide them protection from

3    this fire, protection from this harm.     You didn't

4    provide for their fundamental needs.     That's a health

5    care liability claim.

6                    Now, whether they are suing Ms. Uduma as

7    a, quote, premises owner or not, the underlying

8    nature of the claim is the same as far as Ms. Uduma

9    goes.

10                   But let me address, if I may, because

11   this -- this feeds right into the other argument.        Say

12   Chapter 74 doesn't apply to Ms. Uduma.     What are we

13   left with?    They want to sue Ms. Uduma individually.

14   They want to get liability against her, a

15   judgment against her personally as a, quote, premises

16   owner.   And you have seen that.   I mean, you have seen

17   that in their, in their pleadings.     You have seen it

18   in their questioning of Ms. Uduma.

19                   They said, "Ms. Uduma, you realize you

20   are being sued as a premises owner?"     You saw that in

21   the charge conference and in the language, in the

22   language that they put in the charge about how they

23   wanted liability against her with respect to the

24   condition of the premises, so forth.

25                   Can Ms. Uduma be liable as a premises




                                                        001435
                                                                   20



1    owner in this situation?       And I submit to you that the

2    case law states that she cannot be liable as a matter

3    of law.

4                    Now, the case that I cite is the

5    same case that they cite.       It's the landmark case.

6    It's the Johnson County Sheriff's Posse versus

7    Endsley.    It's a Texas Supreme Court 1996 case.      And

8    what that case says is that a lessor has no duty to

9    protect one from dangerous conditions that occur on

10   the premises after the, after the place has been

11   leased.    There is no duty.     Once the lessor leases the

12   premises, there is no duty.       And the Court said, the

13   reason for this is because she has relinquished

14   possession of the property; therefore, we will not as

15   a matter of law impose a duty on her.

16                   Now, there are three exceptions to that

17   rule, that general rule.       And the three exceptions are

18   burdens that the plaintiff has to prove, according to

19   the Endsley case.    The only exceptions that they have

20   are these three:     One, to show negligent repairs.

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

22   concealed defects.    No allegation or proof of that.

23   Or, third, that she retained control over a portion of

24   the premises on which the injury occurred.       There is

25   no allegation or proof of that.




                                                          001436
                                                                 21



1                     Now, in their brief they alleged -- in

2    their brief they allege that she retained control of

3    the fire safety.     And they tried to establish that by

4    showing that she took the fire marshal around and that

5    she was the one that dealt with the OMNI group that

6    did the fire alarms.     The first problem with that

7    analysis is that there is no showing that she retained

8    any control over a portion of the premises after

9    she leased the property to Four J's.      And there is no

10   evidence whatsoever about that, but the second problem

11   is that the evidence establishes the contrary of that

12   proposition.

13                    She was asked directly about taking the

14   fire marshal around and "Didn't you do that as the

15   premises owner?"     She said, "No.   I had leased the

16   property."

17                    They asked Mr. Overholt, "Well, didn't

18   you --"     I can't remember the exact words; but it was

19   something like, "What was your relationship with

20   Ms. Uduma?"     He said, "I knew her as the principal of

21   Four J's.     Did she ever mention to you that she was

22   the property owner?"     He said, "I assumed that, but

23   she never used those words."

24                    There is no evidence whatsoever that she

25   as the premises owner, apart from -- you know, as




                                                         001437
                                                                 22



1    the premises owner retained any control over fire

2    safety as if they were retaining control over the

3    premises.    So, under the Endsley case -- and the

4    Endsley case is clear -- there are no exceptions that

5    apply to the general rule.     And the general rule is

6    that she has no duty as a lessor; and, therefore, she

7    has no duty and cannot be personally liable for this

8    judgment.

9                    Now, they have also cited and we cited

10   as well Restatement provisions 360 and 361.       And I

11   think those are important too because the Restatement

12   provisions talk about retention of part of the land.

13   And both of those provisions talk about retention of

14   part of the land.     That's the way that a lessor

15   becomes liable, if the lessor retains control over

16   part of the land.     And there is no evidence whatsoever

17   that she ever retained control over part of the land,

18   as if, you know, the lessor would retain control over

19   common areas, for example.

20                   Now, they have cited a case called the

21   Osti case.    And, if I may, that's the only case that

22   they cited that they say supports liability in this

23   situation against Ms. Uduma.     Osti was a case in which

24   the fellow was in a third-floor apartment that didn't

25   have any exits.     And the Court said that's a




                                                          001438
                                                                  23



1    structural issue.    The lessor had a duty to provide a

2    fire escape, and the lessor didn't do it.      So the

3    lessor can be liable for failing to provide a

4    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

7    of structural problem wrong with the house, with the

8    group home that she leased to Four J's.

9                    THE COURT:    Could it have been a back

10   door that would not open?

11                   MR. HOLMAN:    Well, it's a back door that

12   was locked, that had a dead bolt; but that's Four J's

13   problem.    Four J's was the occupier of the premises.

14   Once she relinquished possession to Four J's, Four J's

15   was responsible for all of that stuff.      There is no

16   allegation here that this was a third-floor apartment

17   without a fire escape.

18                   So that -- that case stands for a

19   limited proposition that deals with structural

20   problems.   And there are no such problems that are

21   alleged in -- and that case doesn't have any -- I

22   couldn't find any other cases that relied on that

23   case.   But I found plenty of cases that relied on the

24   Endsley case that say that there is no duty on the

25   lessor in this particular type of situation.




                                                          001439
                                                                    24



1                  Now, the other thing that I saw was that

2    they have cited something in the brief called the

3    International Residential Code.    And we tried to look

4    through the record of the trial and couldn't find any

5    reference to the International Residential Code.        So I

6    don't know where that comes from or how it applies or

7    would be promulgated or how -- how it would apply to

8    Ms. Uduma in this situation.   It might apply to

9    Four J's because Four J's was the occupier of the

10   premises, but it wouldn't apply to Ms. Uduma

11   because she had already leased the premises to

12   Four J's.

13                 Now, there is another argument that's

14   made about Ms. Uduma personally, which would apply, I

15   guess, if Chapter 74 didn't apply to Ms. Uduma

16   personally.   And they say that, that she could

17   be liable personally as the agent of Four J's.     And,

18   first of all, that was not what was tried.     As the

19   Court knows they tried her being a premises owner.

20   That's how they framed their case.    That's how they

21   told the jury that they were trying their case, that

22   she was being sued personally as a premises owner.

23   They never sued her as an agent.

24                 They did have alterego allegations, but

25   they never tried those alterego allegations.




                                                        001440
                                                                    25



1                   There is a problem with them trying

2    to hold her personally liable as the agent of the

3    corporation.   There is a series of cases -- Leitch

4    versus Hornsby, Chron Tri versus J.T.T., Texas Supreme

5    Court cases -- that said that if the corporate agent

6    is accused of violating the same duty that is owed by

7    the corporation then you can't hold the corporate

8    agent personally liable.   And there is a number of

9    cases that have followed that.   And, you know, the

10   idea is that they have to have some independent duty

11   that was violated.   And there was no evidence or proof

12   of some independent duty that was here.     But more

13   importantly -- and I pointed this out at the end of

14   the argument -- is the illogic of it.     If it's true

15   that Four J's is a health care provider whose damages

16   are limited to 250,000 per claimant and their argument

17   now is that Ms. Uduma was an agent of Four J's, under

18   the statute an agent of Four J's is also a health care

19   provider and would be subject to the damage caps.        But

20   what they are saying in their brief is you should hold

21   that Four J's -- that damages are limited for

22   Four J's, but they are -- you can get unlimited

23   damages against Ms. Uduma as the agent of Four J's.

24   And that doesn't make any sense at all.     And it

25   is certainly not the proper construction of the




                                                          001441
                                                                    26



1    statute in that circumstance.

2                     If they are saying that she

3    is personally liable as a premises owner, that's one

4    thing.     We can deal with that argument.     But if she

5    tries to say -- if they try to say she is an agent of

6    Four J's, that takes us right back into Chapter 74.

7                     So what we are asking the Court to do --

8    this is their motion for entry of judgment -- we are

9    asking the Court, if the Court enters judgment, to

10   reduce the damage caps to 250,000 per claimant.         And

11   it's just the noneconomic damages, the 14 million,

12   reduce those down to 250,000 per claimant, pursuant to

13   74.301, which is the limitation on noneconomic

14   damages.     And then, do not enter judgment against

15   Ms. Uduma personally because there is no basis for it.

16                    THE COURT:    Are you still persisting in

17   this argument that because there was no expert report

18   as to Ms. Uduma that the claims against her should be

19   dismissed?

20                    MR. HOLMAN:    No.   No, we're not.   I had

21   made that argument before I saw your comments in the

22   pretrial.    And your comments in the pretrial made it

23   clear that that expert report argument was waived, and

24   we're not raising that anymore.

25                    THE COURT:    All right.




                                                            001442
                                                                 27



1                   All right.    I've got a couple questions

2    for you.

3                   One of the arguments that the Plaintiffs

4    make was that there was a lack of evidence that

5    Four J's was actually licensed at the time of the

6    fire.   What evidence do you have in the record that

7    shows that Four J's was actually a licensed

8    institution at the time of the fire?

9                   MR. HOLMAN:    I don't think that there is

10   a license on file.   But -- and, as we said, the

11   undisputed evidence is that they were operating as an

12   HCS facility under the auspices of DADS.      Everybody

13   admitted and all the documents admitted that they are

14   operating under, under the authority of DADS.

15                  THE COURT:    Don't you have to have a

16   license to operate under the authority of DADS?

17                  MR. HOLMAN:    Of course.   The, the

18   situation in Texas is you can't operate a facility as

19   an HCS facility without a license.     And, believe me,

20   if we -- if there was any dispute about whether we had

21   a license -- which there wasn't throughout the

22   trial -- if there was any dispute, they would have

23   brought that up and said, you are violating the

24   regulations because you are operating this facility

25   without a license.   There was never any evidence or




                                                           001443
                                                                    28



1    any dispute that we were properly authorized to act as

2    an HCS facility.   And all the documents support that.

3                  THE COURT:     All right.     Those are my

4    questions.

5                  Mr. Post.

6                  MR. POST:     Yes, sir.     Your Honor, I

7    would like to begin with the Chapter 74 question

8    regarding Four J's.     I think it's important to step

9    back for one moment and see the big picture of the

10   case, see how the issues interact, because Four J's

11   was found 60 percent responsible for this incident.

12   So it would be jointly and severally liable.        Four J's

13   does not have any duty argument here.        Four J's is

14   depending on its ability now to establish

15   the applicability of Chapter 74.        If it fails in that

16   effort, then the Plaintiff and the Intervenor

17   are entitled to a joint and several judgment of the

18   uncapped damages with respect to Four J's.        We still,

19   obviously, would want the judgment with respect to

20   Ms. Uduma personally.     But that would essentially be a

21   roadmap to a decision of the case.

22                 THE COURT:     But that would be after

23   60 percent -- the percentage liability application,

24   right?

25                 MR. POST:     With respect to whom, Your




                                                           001444
                                                                   29



1    Honor?

2                     THE COURT:    Four J's.

3                     MR. POST:    No.   Four J's is jointly and

4    severally liable because --

5                     THE COURT:    But I'm saying that --

6    you're not saying that you could get 14 million

7    against Four J's?     You are saying 60 percent

8    of 14 million?

9                     MR. POST:    That would include -- we

10   would be entitled to recover everything.

11                    THE COURT:    That's with the 60 percent

12   of --

13                    MR. POST:    Yes, because under Chapter 33

14   a defendant that is found more than 50 percent liable

15   is --

16                    THE COURT:    All right.

17                    MR. POST:    We wouldn't be entitled to

18   recover twice, obviously.       We would never try to do

19   that.

20                    THE COURT:    It would be up to Ms. Uduma

21   then to seek contribution for --

22                    MR. POST:    Exactly.     That's exactly

23   right.

24                    THE COURT:    I see.

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




                                                             001445
                                                                30



1    question of whether Four J's is entitled to invoke

2    Chapter 74 because this is a question of conclusive

3    evidence.   It's not a legal question.

4                    Mr. Holman has cited the statutes that

5    make an HCS program fall within the definition of a

6    health care institution; but the key is he has to

7    establish the factual predicate that Four J's at the

8    time of this incident was, in fact, an HCS program.

9                    We had a full trial.   Mr. Holman says

10   repeatedly there was no dispute about this issue, but

11   this is not our burden.     It is the Defendants' burden

12   of proof to prove that they are entitled to invoke

13   this statute.    They had the burden to prove it, and

14   they did not prove it at trial.     And they did not ask

15   for jury findings on it.     And so, in this posture,

16   they had the obligation under Rule 279 to establish it

17   conclusively.    If it's not conclusively established

18   that Four J's was a certified HCS program at the time

19   of this incident, that defense is waived and they

20   cannot invoke Chapter 74.

21                   The proof that you see in their motion I

22   think underscores their full awareness that they did

23   not prove this fact at trial.     The issue never came

24   up.   When they filed their original response to our

25   motion for judgment, they simply asserted that they




                                                        001446
                                                                   31



1    were an HCS program without proof.     We filed our

2    response and pointed out that they hadn't established

3    that fact.     They had a month in which to dredge the

4    record for that evidence.     And they don't have

5    evidence that conclusively establishes that.

6                    Here's what I want to emphasize.      They

7    have given you four categories of evidence that they

8    say establishes that they are an HCS program.       None of

9    that evidence is conclusive.     And it's important to

10   look at this carefully in light of the conclusive

11   evidence standard.     Mr. Holman correctly cites a

12   couple of cases that have found HCS programs to be

13   health care institutions; but, importantly, in neither

14   of those cases was the Court faced with the question

15   of whether the defendant proved it was an HCS program.

16   This is that case.

17                   Now, the first category of evidence that

18   they cite is a series of exhibits that referred to

19   Four J's as an HCS program.     That was their

20   Appendix A.    All that is is a series of internal

21   documents from Four J's that internally brand it as an

22   HCS program.    But those documents don't say anything

23   about certification; they don't say anything that

24   establishes that, in fact, Four J's was certified at

25   the time of this incident; and, in fact, they don't




                                                           001447
                                                                   32



1    conclusively establish even that it's an HCS program.

2    They simply say Four J's holds itself out as such.        A

3    fact finder would not be obligated to believe that

4    evidence.   At best, that would have been probative

5    evidence to put before the jury.     But they didn't ask

6    the jury to make a finding, and that's not

7    conclusive evidence of anything.

8                   In a moment, when I deal with the

9    Web site evidence, I'm going to walk you through the

10   way the administrative scheme works; and you will

11   see there is a certification procedure that

12   involves annual reviews, relicensing.     And there is a

13   certificate that has to be issued.     They haven't dealt

14   with any of that with these internal exhibits.

15                  Their second category of evidence they

16   claim is trial testimony.     I read every excerpt of

17   that trial testimony today.     None of it says that

18   Four J's was a certified HCS program.     Yes, there are

19   references to the procedures of HCS programs.      Yes,

20   there are some references to a variety of regulatory

21   proceedings.   But nothing in that testimony ever

22   specifically says HCS is a certified program.      And

23   even if it did, it's within the province of the trier

24   of fact to believe or disbelieve contested testimony.

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




                                                         001448
                                                                 33



1    witnesses on that issue if they had ever put a witness

2    up who gave that testimony.     So that can't be

3    conclusive evidence.

4                   I would emphasize, among the excerpts

5    that they cited, from the October 18th trial testimony

6    was the testimony of the Plaintiff's expert Mr. Kern,

7    who at Pages 256 to 261 talked some about the

8    certification procedure and the fact that there

9    are annual reviews and that an institution can loose

10   its certification.     And so there is in fact converting

11   evidence in the record that would allow a fact finder

12   to question whether this institution was certified.

13   That's certainly not conclusive evidence as they have

14   to prove it.

15                  The third category of evidence -- and

16   this is, I think, the real evidence of a guilty

17   conscience -- is they try to use the Plaintiff's

18   Chapter 74 expert report to prove that they were an

19   HCS program.   As the Court knows, that expert report

20   is not in evidence; and so it cannot be used now to

21   establish their defenses as a matter of law.

22                  Second, under Chapter 74, which they

23   are trying to rely on, no expert report can be used

24   for any purpose.     They would not be trying to rely

25   on that expert report if they believed they had proved




                                                        001449
                                                                  34



1    this defense as a matter of law at trial.     They know

2    they didn't.

3                     So that brings us to the key to their

4    case, and their whole defense now rests on this

5    one premise.     They want you now to reopen the evidence

6    and take judicial notice of two Web sites which they

7    say now, two months after trial, are going to prove

8    their defense.    And I want to talk at some length

9    about what's wrong with that effort to rely on these

10   Web sites.

11                    First of all, I don't think it's an

12   appropriate use of judicial notice to ask a Court to

13   judicially notice a fact that is essential to

14   establish an essential element of a theory of recovery

15   or defense after trial.     What they are saying is we

16   can come in for the first time after trial and,

17   essentially, establish the element of our defense as a

18   matter of law.    Rule 270 says that you cannot take

19   additional evidence on a controversial matter after

20   the jury has returned a verdict.     And that's the

21   essence of what they are asking you to do here.        And

22   it fits with the judicial notice rule because, even

23   when judicial notice is proper, it's proper only if

24   the fact that is being requested for judicial notice

25   is not within reasonable dispute.     They have to




                                                           001450
                                                                   35



1    conclusively establish that the fact exists that they

2    are asking you to take judicial notice of.       And these

3    Web site excerpts simply won't do it.

4                    If you turn to the actual documents that

5    they have attached, I want to point out a few problems

6    with these Web site excerpts.     The Web site

7    excerpts don't say anything about whether Four J's is

8    certified.   That's the key fact, is whether Four J's

9    was in fact an HCS program in accordance with the

10   Social Security Act at the time of this incident.

11   Nothing in these two excerpts say that.     In fact,

12   there is a detailed certification procedure --

13                   Robert, if you will give the Court a

14   copy of this.

15                   (Referenced document tendered to the

16                   Court and counsel.)

17                   MR. POST:   -- that an institution has to

18   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

21   is Section 9.151 of the Administrative Code.       You will

22   see Paragraph 3 says this statute controls the process

23   for certifying an HCS program.     Likewise, Tab B

24   says this subchapter applies to all HCS programs.

25                   I think this is exactly the statutes




                                                          001451
                                                                 36



1    that they are relying on.

2                  THE COURT:     Let me ask, this tab --

3    these are administrative codes?

4                  MR. POST:     Correct, Your Honor.

5                  THE COURT:     You were referring to a

6    statute.

7                  MR. POST:     Well, I'm loosely referring

8    to the Administrative Code as a statute.      It is

9    technically regulatory, but it is the applicable

10   regulatory law here.

11                 THE COURT:     All right.   Thank you.

12                 MR. POST:     Tab C, Your Honor, in

13   Paragraph (a) -- this is the language upon which

14   Mr. Holman relies.     And I agree with him --

15   establishes that an HCS program is the Medicaid

16   waiver program that is referenced in Section 1915(c)

17   of the social Security Act.     We don't quarrel with

18   that conclusion, but they have to establish that they

19   are a certified program.

20                 Turn then to Tab D.     Section 9.171 sets

21   forth the certification and review procedures.

22   Paragraph (a) makes clear a provider has to be in

23   continuous compliance with the program certification

24   principles.

25                 Paragraph (c) points out that




                                                            001452
                                                                37



1    DADS conducts on-site certification reviews annually.

2    And Paragraph (d) provides that a certification lasts

3    for one year only, and it has to be renewed each year.

4    And so the fact that at one point in time this

5    institution was a certified HCS program does not mean

6    that it is "world without end, amen."

7                    Turn then to Tab E, which discusses the

8    process for certification.    Paragraph (a) assumes the

9    best case.   If DADS does a certification review and

10   finds compliance with all certification principles,

11   the program is certified.    But that's not the only

12   provision.   This is an entire spectrum of what the

13   regulation calls sanctions that deals with the extent

14   of noncompliance.    I want to point you to just a

15   couple of potential consequences.

16                   They have the burden to show you

17   conclusively that they were certified; so, I'm not

18   going to try and go through this exhaustively.       But

19   look, if you would, at the second page of this

20   provision at Paragraph (d), left-hand column, one-half

21   of the way down, "If DADS determines that a program

22   provider is out of compliance with between 10 and 20

23   percent of the certification principles at the end of

24   the review exit conference ... DADS does not certify

25   the program."    That throws the program into a




                                                          001453
                                                                38



1    follow-up review process.     At the end of which -- and

2    you can see this in Paragraph (2) -- "Based on the

3    results of the follow-up review," Subparagraph (B), if

4    corrective action has not been satisfactorily taken

5    DADS denies certification of the program and

6    implements other sanctions.

7                    Without burdening the Court with a lot

8    of administrative parlance, I will tell you that if

9    you go through the rest of this provision you will see

10   heightening degrees of sanctions that, likewise, lead

11   to denials of certification.     So it's not the case

12   that simply because one assumes that this program was

13   once an HCS program it is automatically and forever an

14   HCS program.

15                   So what do we have then on these

16   Web sites?     Again, the Web sites don't say anything

17   about whether HCS is in fact -- pardon me -- about

18   whether Four J's is in fact a certified HCS program,

19   particularly not on this date.     They don't say

20   anything about whether certification was present at

21   the time.    And I want to talk a little about the

22   details of what you see on the face here.

23                   These Web site excerpts specifically

24   say, we're providing this as a service to provide a

25   list of providers.     Look at -- at the bottom of the




                                                          001454
                                                                     39



1    first page at the caution.

2                     The caution says:    This is simply a tool

3    we provide you to help you make a selection.         This is

4    not a report of the agency's official business.         This

5    is a public service to provide a list of potential

6    providers.     And, importantly, look at the

7    last sentence of that caution.       This site may

8    include some self-declared and unverified information.

9                     The test the Supreme Court has laid out

10   for judicial notice is that the fact you are asked to

11   take judicial notice of must be, quote, verifiably

12   certain.     That's what the Supreme Court said in the

13   Eagle Trucking case.     This Web site says, we are

14   telling you some of the information on this list is

15   not verifiable.     On its very face, it's not

16   appropriate for judicial notice.

17                    When you look at the second attachment

18   that they have provided, you see a compliance history.

19   It is littered with noncompliance.       We don't know what

20   action was taken by DADS at the relevant time.         We

21   don't know what corrective steps were taken.         We don't

22   know whether they were certified at the time.

23                    Now, perhaps a fact finder could draw an

24   inference had this evidence been properly introduced

25   at trial that they were certified; but it's certainly




                                                           001455
                                                                   40



1    not conclusive evidence that no reasonable mind could

2    dispute.    And had they tried to put it on at trial, we

3    would have cross-examined them, not only about what is

4    on this document, but on the nature of the

5    investigations that took place, the review process

6    that took place, and whether there was in fact

7    a certification.

8                     I want you to note in this respect the

9    dog that's not barking.        They didn't put Ms. Uduma on

10   to testify that they were certified as an HCS

11   program.    They haven't given you an official

12   certificate that says on this date they were

13   certified as an HCS program.        Mr. Holman says, if I

14   hear him correctly, they don't have it.

15                    This is categorically not

16   appropriate --

17                    MR. HOLMAN:     I don't mean to interrupt,

18   but -- --

19                    THE COURT:     You will get a chance to

20   respond.

21                    MR. HOLMAN:     -- I never said that I

22   didn't have it.

23                    THE COURT:     You will get a chance to

24   respond.

25                    MR. POST:     They have to prove this fact




                                                           001456
                                                                41



1    conclusively.     This evidence doesn't prove this fact

2    conclusively.     And because they can't establish it,

3    they have to live with the consequences.     They have

4    not established their right to invoke Chapter 74,

5    which means all the other questions related to

6    Chapter 74 are inapplicable.

7                    Now I'm going to touch very briefly on

8    Ms. Uduma's argument that she can invoke Chapter 74.

9    Mr. Holman says he meets the one argument that we

10   raised in our response that this was a judicial

11   admission made by defense counsel; but, of course, I

12   didn't make one argument in my response, I made three

13   arrangements in my response.     I argued it was a

14   judicial admission, but I also argued that it was a

15   waiver because counsel made a stipulation to these

16   lawyers and to the Court that he would not assert a

17   defense.   And even if you have a legitimate legal

18   position, a lawyer representing a client can choose to

19   waive that position; and defense counsel did that.

20   And you cannot overcome that by saying the evidence

21   was conclusive.     He stipulated he would not assert

22   this defense, and he has to be bound by that

23   stipulation.

24                   And the third argument I made, he needed

25   your leave to file an amended pleading asserting




                                                          001457
                                                                   42



1    this defense on behalf of Ms. Uduma.        You didn't give

2    him that leave because, when counsel on this side of

3    the table asked for a clarification of your ruling,

4    you looked at him and you said:     Are you asking for

5    relief for Ms. Uduma?     And he said no.     He does not

6    have a ruling granting him leave to amend and assert

7    Chapter 74.     He has waived that consciously.     That

8    means it's immaterial whether it's a judicial

9    admission.

10                    Now, with respect to the judicial

11   admission point, Auld is the only case cited by the

12   parties that deals with the application of Chapter 74;

13   and Auld stands for the proposition that whether you

14   are a health care provider is a fact that can

15   be judicially admitted.     And I believe it was admitted

16   here, but that question is not even before the Court.

17                    I'm going to touch finally on the duty

18   question with respect to Ms. Uduma.     I don't think

19   we're really in any disagreement about the law.

20   I agree with Mr. Holman's statement of the

21   basic principles.     I also agree with his statement of

22   the exceptions with regard to the retention of

23   control.

24                    The Osti case is the key case on this

25   point.     It is a Houston 14th Court of Appeals case and




                                                           001458
                                                                 43



1    it is in the fire safety context.     And the Houston

2    court held that control remained with the property

3    owner with respect to safe egress from the property

4    and the tenant didn't have the obligation to provide a

5    safe fire escape.    Mr. Holman tries to distinguish

6    Osti, but I submit he cannot distinguish it on its

7    facts.   He says that a structural problem in the

8    premises is what Osti is all about.     That's what this

9    case is all about.    The dead-bolted fire exit without

10   the key is in violation of the applicable property

11   ordinances and creates a premises defect.     It is a

12   structural defect.    It is the same as a wall because

13   you couldn't exit.    And, in addition, there was

14   evidence at this trial that there should have been

15   overhead sprinklers in this facility.     That is another

16   structural defect that falls squarely within the Osti

17   rule.

18                  The argument that's made today that the

19   control that Ms. Uduma exercised over the premises

20   with respect to the fire escape procedures and the

21   fire safety procedures definitely falls within control

22   of the property.     And it was for the jury to decide

23   whether she exercised that control as the property

24   owner or as an agent of Four J's.

25                  The jury was asked to apportion fault




                                                         001459
                                                                     44



1    between Four J's and Ms. Uduma personally.         The jury

2    made this resolution, that she had that control and

3    she acted negligently.       And that finding should be

4    upheld.

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

6    questions for you.

7                    MR. POST:    Of course, Your Honor.

8                    THE COURT:     All right.    Just so that

9    we're all clear here, are Plaintiffs persisting in

10   argument that their claim against Ms. Uduma was in her

11   capacity only as the premises owner?

12                   MR. POST:    As opposed to, again,

13   capacity as the agent, Your Honor?

14                   THE COURT:     Or anything else.

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

16   about anything else.

17                   THE COURT:     Negligence.    Negligent

18   activity.   The only theory of recovery against

19   Ms. Uduma is against her in her capacity as the

20   premises owner?

21                   MR. POST:    I believe that is correct.

22   Let me confer with lead trial counsel, since I wasn't

23   at the trial.

24                   (Pause.)

25                   MR. POST:    I think that's right, Your




                                                               001460
                                                                      45



1    Honor.

2                     THE COURT:    Okay.     Now, the -- is it the

3    Johnson case -- whatever Supreme Court case -- that

4    talks about a landlord's duty or lack thereof --

5                     MR. POST:    Yes, Your Honor.

6                     THE COURT:    -- and sets out the three

7    exceptions?     It talks about the exception for a

8    landlord to retain control of a portion of the lease

9    premises.     I think the standard thought is the common

10   areas in a condominium or in an apartment complex or

11   whatnot.    And your -- as I understand, your argument

12   is that, well, Osti explains that that also addresses

13   control of access and departure, egress and exit --

14   access and egress -- it's been a long day;

15   excuse me -- of the property.          Is that what you are

16   arguing?

17                    MR. POST:    That's right.

18                    THE COURT:    Okay.     What -- what evidence

19   do I have that Ms. Uduma maintained control of any

20   structural changes to the property?

21                    MR. POST:    Well, Your Honor, I believe

22   that the testimony was that she, obviously, is the

23   property owner; that she made the decisions about the

24   fire safety systems, the systems that had been

25   installed, the systems that had not been installed




                                                             001461
                                                                    46



1    with respect to sprinklers; that she was the

2    individual who worked with the fire marshal on the

3    OMNI systems on dealing with inspections; that she was

4    aware of the dead-bolted door.      All of that

5    is evidence from which the jury could draw a

6    conclusion about the capacity in which she was

7    exercising control.

8                    Essentially, the argument that's made by

9    Defendants is that she wore two hats; and, therefore,

10   when she undertook this activity, she was necessarily

11   wearing her Four J's hat.      I don't think the evidence

12   of that proposition is conclusive.         And so it's for

13   the jury to decide.    The jury was asked:       Do you find

14   Four J's liable?    Do you find Uduma liable?       And the

15   jury made that determination and apportioned fault.

16   And I think that the jury had enough evidence before

17   it to conclude that Ms. Uduma was acting in her

18   capacity as property owner when she was dealing with

19   these issues.

20                   THE COURT:    All right.     Do you want to

21   make any responsive reply?

22                   MR. HOLMAN:    Yes, Your Honor.

23                   First of all, Mr. Post started his

24   argument by saying that we have some duty to get jury

25   findings about our status as a health care provider.




                                                            001462
                                                                   47



1    There is not a single case in Texas jurisprudence that

2    would ask a health care provider to get jury findings

3    on that.    That's a matter of the Court's

4    interpretation of statute based on the undisputed

5    evidence.

6                     THE COURT:    Is there any case that says

7    it's a question of law as opposed to a question of

8    fact?

9                     MR. HOLMAN:    Well, there is cases that

10   talk about it being a construction of statute as a

11   matter of law.     And we would submit that we have

12   undisputed --

13                    THE COURT:    What am I construing?

14   I'm just looking at the definition and applying it to

15   the party to determine whether they satisfied the

16   definition, right?

17                    MR. HOLMAN:    True.

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

19   fact?

20                    MR. HOLMAN:    Well, the question -- it's

21   not a question of fact because the facts are

22   undisputed in this instance.

23                    THE COURT:    They have got a pretty big

24   brief there as to whether they are a health care

25   institution.




                                                            001463
                                                                 48



1                   MR. HOLMAN:     Let me -- let me say why

2    that doesn't apply.    The only time that they ever

3    raised this argument about, you know, whether there is

4    certification, or whatever, is after we made the

5    argument post-verdict that Chapter 74 applied.      They

6    said, well, you didn't show that you were certified.

7    Well, first of all, everyone admitted, every -- every

8    bit of testimony during the trial admitted that we

9    were an HCS program.     There wasn't a single person

10   that got up on the stand or any document they

11   presented that said, wait a minute, they are not an

12   HCS program because they didn't present certification.

13   Had they have done that, we would have presented

14   the certification.     And we have the certification to

15   present, if we need to.      If we needed to, if that was

16   ever an issue in this case, we certainly would

17   have presented it.

18                  THE COURT:     But doesn't the

19   definition require there to be -- for the party to

20   be duly certified?

21                  MR. HOLMAN:     Well, first of all, there

22   is not a single case in Texas that has required a

23   hospital, for example, to come in and present its

24   license in order to be recognized as a health care

25   provider.   The only time that would come up is if




                                                         001464
                                                                      49



1    somebody said, you don't have a license.        Then they

2    would say, well, okay, I have to present my license.

3    But, otherwise, a hospital or an HCS program is

4    operating under the, under the auspices of the State

5    of Texas unless shown otherwise.

6                     There is no proof in -- anywhere that

7    they were operating in somehow some kind of a renegade

8    fashion as a treater of mentally retarded adults in

9    Texas without a license or without certification.

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

11   that.

12                    THE COURT:    But whose burden is this?     I

13   mean, you are asking to impose statutory caps on

14   damages.     Isn't it your burden to establish a right to

15   those statutory caps?

16                    MR. HOLMAN:    And --

17                    THE COURT:    So why does it matter

18   whether there is any evidence that they are a rogue

19   operation?     Isn't it on you all to produce evidence,

20   get a jury finding that would support a judgment by me

21   imposing those caps?

22                    MR. HOLMAN:    No.   There is no -- there

23   is no case that would require us to get a jury finding

24   on that.     The Court looks at the nature of the

25   institution and decides whether it qualifies as a




                                                            001465
                                                                   50



1    health care provider.     And that's those two cases that

2    I showed you where the Court said, the nature of

3    this entity is a home and community-based service

4    program for mentally retarded adults; therefore, it is

5    a health care provider.    It is the Court's

6    determination based on the nature of the beast.       Just

7    like their argument that somehow we needed to get

8    jury findings on whether this was a health care

9    liability claim or not, there is no case that so

10   holds.   In fact, the Supreme Court cases all hold that

11   the way you determine that is to look at the nature of

12   the underlying claim.

13                  That Omaha Healthcare case, the spider

14   bite case, says you look at the nature of the

15   underlying claim in order to determine whether it's a

16   health care liability claim.     So you look at the

17   evidence that was presented in this case, and the only

18   evidence that was presented in this case is that they

19   were an HCS program being regulated by DADS.     If they

20   are an HCS program being regulated by DADS, they are

21   under Chapter 74.   And it's in crystal clear terms in

22   the statute.   Now, if they are a health care

23   institution, then they are a health care provider.

24                  Now, this whole issue is a make-way

25   issue about whether there is certification or not.       If




                                                           001466
                                                                    51



1    that were a requirement of the statute, there would be

2    some case somewhere that said, well, you didn't make

3    your certification requirement.        But there is no case.

4                   THE COURT:    Well, let's be clear,

5    though.   The certification that I am referring to --

6    well, okay.   Looking first at the definitions in

7    74.001 Paragraph (11), it lists a whole slew of

8    different entities that can be considered a health

9    care institution.   And one of those is a hospital.

10   And it doesn't say anything about qualifications or

11   certifications or licensure.     It just says hospital.

12                  MR. HOLMAN:    Right.

13                  THE COURT:    But you are seeking

14   protection under Subparagraph (I) --

15                  MR. HOLMAN:    Right.

16                  THE COURT:    -- which is, from what I can

17   tell, the longest definition under Paragraph (11)

18                  MR. HOLMAN:    Right.

19                  THE COURT:    "An intermediate care

20   facility for the mentally retarded or a home and

21   community-based services waiver program for persons

22   with mental retardation adopted in accordance with

23   Section 1915(c) of the federal Social Security Act."

24                  So it's not like just any intermediate

25   care facility can qualify for that definition.        They




                                                           001467
                                                                  52



1    are making it narrow there.     So why shouldn't you

2    have to establish that you fall within the narrow

3    confines there?

4                   MR. HOLMAN:    You will notice -- and this

5    definition doesn't say anything about license, about

6    licensure either, just like the hospital doesn't.

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

8    provider" does.

9                   MR. HOLMAN:    Right.   And what they say

10   is "chartered by the State of Texas."      The only way

11   you can operate an HCS facility is to be chartered by

12   the State of Texas.    You can't go out and operate an

13   HCS facility without one, and that's clear in all the

14   regulations.   And in the regulations that we cited to

15   the Court about HCS programs, the only way that you

16   can be an HCS program is to operate under

17   Section 1915(c) of the Social Security Act.

18                  There is no -- there is no dispute about

19   any of this.   There is no dispute about what

20   constitutes a home and community-based services

21   program for mentally retarded adults.      The regulations

22   require it.    And, therefore, we are not required, just

23   like a hospital is not required, to prove that we have

24   a license on file because we are a chartered -- we --

25   we were operating under the regulations of the State.




                                                         001468
                                                                    53



1    And if it were a requirement that you will have to

2    come in and show here is a license, there would be

3    some case that said that, that that was part of the

4    requirement here, to show that, well, wait a minute,

5    that you had a license on file.      That's not a

6    requirement.     They are just making that up because

7    it's the only attack -- they haven't said -- you

8    notice, they haven't said they are not a home and

9    community-based services program for mentally retarded

10   adults under Section 1915(c).      They haven't said

11   that.   If we are, then we qualify as a health

12   care provider.

13                    Now, Mr. Post made the statement that I

14   indicated we didn't have such a certification.         I

15   never said that.     In fact, we have the certification.

16   The problem is that I didn't want to get into the

17   position of asking you to reopen the evidence to show

18   the certification because I didn't think that was part

19   of my burden in order to show that we are a home and

20   community-based services program under 1915(c) because

21   that was never an issue.      And it shouldn't be an issue

22   now.

23                    THE COURT:   Let me ask you something.    A

24   doctor is out there treating someone and leaves a

25   sponge in the abdomen, and it turns out that the




                                                            001469
                                                                      54



1    doctor had lost his license to practice medicine.

2    Whose burden is it at trial to show that the doctor

3    qualifies as a health care provider?

4                     MR. HOLMAN:     Well, here's -- here's

5    my belief.     You show -- you show the requirements of

6    the statute.     You say:   I fit this category.       I am

7    here.     I'm hereby abiding by this statute.

8    I qualify as a health care provider.        Then I think

9    the burden is on the opposing party to say:           No, they

10   don't.     They don't qualify as a health care provider

11   because of XYZ.     Because, once you qualify as a health

12   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

15   all the definition requirements under the statute; and

16   they come in and say, well, you didn't prove that you

17   had a certification -- notice they didn't say you

18   don't have a certification -- so you don't qualify as

19   a health care provider.        They didn't say:   Wait a

20   minute.     There is no license; so, you don't qualify as

21   a health care a provider.        What they said is:     You

22   didn't prove that you had a license; so, you don't

23   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,




                                                             001470
                                                                 55



1    because otherwise you couldn't operate such a group

2    home.

3                  THE COURT:     Do you -- I just want to

4    make sure I'm clear.   You agree that this is an

5    affirmative defense of the Defendants that the -- the

6    application of the Chapter 74 damage caps?

7                  MR. HOLMAN:     Yes, I do.

8                  THE COURT:     Okay.   Let's take it as

9    a different type of case, a contract case.      The

10   defendant claims the affirmative defense of fraud,

11   vitiating the contract.     Whose obligation is it to

12   establish the seven elements of fraud to support the

13   jury finding to vitiate the contract?      Is it up to

14   the defendant to make sure the question is asked as to

15   the seven elements or is it incumbent on the plaintiff

16   to produce evidence that they didn't show justifiable

17   reliance?

18                 MR. HOLMAN:     I think the answer to that

19   is, of course, they have to present all the evidence

20   of the statute.

21                 THE COURT:     Then why wouldn't the health

22   care provider in this situation have to establish that

23   they are licensed or certified?

24                 MR. HOLMAN:     Just like I said, Your

25   Honor, all of the evidence -- there isn't any dispute




                                                           001471
                                                                 56



1    about what the evidence is.     All the evidence

2    establishes that they are a home and community-based

3    services program for mentally retarded persons under

4    Section 1915(c).     No dispute about that.   If they are

5    operating as an HCS program, they are operating under

6    the authority of the State of Texas.     That's what the

7    regulations tell us.

8                    We don't have to come in and show our --

9    here's our contract, by the way.     Here's our contract

10   under which we were operating.     Because all -- there

11   is no -- there is not a single bit of evidence that

12   controverts that we were properly operating as an

13   HCS provider.     And so it seems to me ridiculous that

14   we would be required as part of our burden of proof to

15   come in and present the licenses under which we are

16   operating if nobody ever contested that, if there was

17   never any dispute that we were properly operating as

18   an HCS program.     And there still is no dispute to this

19   day.   So they bring up this argument, but they don't

20   have any -- a lick of evidence that we weren't

21   operating properly as an HCS provider.

22                   THE COURT:   What is your response to

23   their argument that Osti interprets the control

24   exception for landlord liability to issues of access

25   and egress problems?




                                                        001472
                                                                57



1                   MR. HOLMAN:   Well, I think it's

2    important to recognize that Ms. Uduma leased the

3    property in 2002.    The access and egress that they are

4    talking about is a dead bolt on a door.    And the dead

5    bolt on the door that we're talking about was in 2008

6    and whether there was a key available to open that

7    door or not.   And the key was -- I think the testimony

8    was that the key was there but it wasn't in the door,

9    or that sort of thing.    That's far different because

10   that kind of duty -- the duty of whether you put in

11   sprinklers after 2002 or not, that was all on Four J's

12   because Four J's was the occupier of the premises.

13   They had possession of the premises.    They had the

14   right to control what happened with how they did

15   their fire safety.   I think that's clear in the

16   evidence.

17                  There was a statement that the fire

18   marshal -- by her taking the fire marshal around was

19   somehow some evidence that she controlled fire safety.

20   And I quote from the record -- and let me just read it

21   into the record here, for the purposes of our record.

22                  The question was asked by Mr. Thweatt of

23   Ms. Uduma, "Why did you take the fire marshal to the

24   house?"

25                  Ms. Uduma answered, "Because when you




                                                        001473
                                                                 58



1    have a four-bed the HCS policy and procedure require

2    that every year the fire marshal will have to come

3    and do inspection to make sure that all the fire

4    systems are working, that the house is in compliance

5    with the State fire code."

6                   Question:     "Because you owned the house

7    and you had to escort the fire marshal through the

8    premises, right?"

9                   Answer:     "No.     This was done

10   by Four J's.   But I usually take the fire marshals.

11   It has nothing to do with the group home because the

12   house was leased to the company."

13                  So the only evidence is that Ms. Uduma

14   was doing it on behalf of Four J's, not as the

15   premises owner.     So their argument that somehow she

16   retained control because she escorted the fire marshal

17   around, that that imposed liability on her as a

18   premises owner is incorrect.

19                  THE COURT:     All right.     Do you have

20   anything else to add?

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

22                  THE COURT:     Mr. Sparks, I forgot to ask

23   you if you had anything to add; and I apologize for

24   that.

25                  MR. SPARKS:        I do, Judge.




                                                            001474
                                                                  59



1                     I just want to say that Mr. Holman is

2    incorrect because there was some contest about whether

3    or not Four J's was duly licensed and certified.        In

4    fact, Mr. Thweatt was arguing against it when we were

5    challenging the third combined amended answer via our

6    motion to strike.     And, if I am not mistaken, you

7    asked him yourself, Judge, whether or not they had a

8    license, certification, registration.     And he said

9    that he thought they did.     And then you asked him if

10   they attached it to their pleadings, and he said they

11   didn't.   Then he gave you a document that was nine

12   years old, and then he said that they were going to

13   come back and give you additional documentation and

14   they were going to prove it up by testimony.     That's

15   in the record.

16                    Once we got through with the examination

17   of Ms. Uduma, we passed Ms. Uduma; and Mr. Plummer

18   reserved any and all questions that he had about the

19   licensing or anything else related to them being

20   certified until his case in chief.     So, at the time,

21   when we got through with Ms. Uduma, there had been

22   nothing in the record that had been elicited from her

23   regarding their corporate status, certification,

24   registration, or anything of that nature.

25                    Once Mr. Plummer took her on his case in




                                                        001475
                                                                 60



1    chief -- you can look through the record, Judge --

2    he asked her not one question, not one, about

3    registration, licensing, certification, any of the

4    things that you asked him about in reference to them

5    proving up whether or not they came up under the

6    Chapter 74 protections.   So he never asked her and

7    he never put any additional information into -- no

8    additional evidence into the record.

9                   So our position is that they didn't meet

10   their burden of proving and establishing Chapter 74.

11   And, if they didn't meet their burden, then Ms. Uduma,

12   who allegedly is the owner of the company, can't also

13   be a health care provider unless she is a doctor or

14   a nurse.   And her testimony is that she was not.     She

15   was some type of counselor.

16                  What they want to do is say, well,

17   Mr. Plummer waived her ability to have Chapter 74

18   protections; but that's a conclusion of law, he

19   couldn't do that.   But our position is, if, in fact,

20   she never -- if, in fact, Four J's was never

21   established as a health care provider because they

22   hadn't met the requirements of providing a license,

23   registration, or certification from the State of

24   Texas, then Ms. Uduma didn't either.   And for him to

25   stipulate that she wasn't a health care provider and




                                                         001476
                                                                 61



1    they weren't seeking those protections and of which we

2    detrimentally relied on and passed a continuance that

3    you offered us, they can't come back now and say we're

4    protected under Chapter 74.

5                   So I submit to you, Judge, that, not

6    only that Mr. Plummer did not meet their burden after

7    telling you that he would -- you asked him the

8    question, if I'm not mistaken, two or three times

9    about a license.   It's in the record.   And he said he

10   was going to give it to you.   They never did.     And he

11   never asked Ms. Uduma any questions about whether or

12   not she was certified by the Social Security

13   Administration, whether or not she was certified by

14   DADS or anybody else.

15                  The issue, Judge, in reference to

16   Ms. Uduma having control over the premises, I think --

17   I think the facts that went to the jury were several.

18   One of them was how she instructed the staff to never

19   take the people out the back door because it was

20   always locked; to take them out of a window; take them

21   out the garage; try to take them out the front door,

22   even though that back door had been a designated fire

23   exit.   And the only time that door was utilized was

24   when she showed up to open it up for the fire marshal.

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




                                                        001477
                                                                 62



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

2    premises.

3                   Mr. Plummer, in his argument to the jury

4    tried to even say this:    There is another exit out the

5    side of the garage that they could have went out of.

6    But that wasn't a designated fire exit.     The back door

7    had been a designated fire exit, and it had been

8    closed off and sealed off from our clients being able

9    to exit it.

10                  The employee, who ran out of the house

11   when the place was on fire because she was afraid,

12   said that the first thing she did when she thought

13   about trying to extradite these people from the

14   property was that the back door was locked and she

15   didn't have a key.    She panicked and she ran out.

16                  Additionally, Judge, I want to share

17   with you the issue on the fire sprinkler system.

18   Ms. Uduma instructed the employees how to go in and do

19   these mock fire drills and put down on the reports

20   that they were getting the people out within a two or

21   three-minute time period, even though everybody else

22   testified that wasn't correct in terms of how it

23   practically happened.     And we submitted to the jury

24   that they were manipulating, based on Ms. Uduma's

25   instructions, manipulating the time periods to show




                                                        001478
                                                                   63



1    that they could get the people out in less than three

2    minutes so they wouldn't have to put the

3    sprinklers systems in.        And I submit, Judge, that by

4    her being directly involved in terms of the fire

5    safety system, the exit door, and what the employees

6    should have done to try to get the people out in the

7    event of a fire showed, and the jury ruled, that

8    she maintained control over those aspects of the

9    property.     Therefore, they held her 40 percent liable

10   for the verdict.

11                    And I ask you, Judge, to not throw away

12   the hard work that this jury did and the testimony

13   that they heard and the hours of deliberation they did

14   back there, painstakingly, and came up with this

15   verdict.    I ask you to submit it -- to sign it and to

16   render it against Four J's and Ms. Uduma.

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

18   Your Honor?

19                    THE COURT:     Yes.

20                    MR. HOLMAN:     First of all, there is not

21   a single case in Texas jurisprudence that holds that

22   in order to prove that you are a health care provider

23   you are required to present a license or a

24   certification, not a single case that does that.        We

25   do not believe that it is our burden to have to prove




                                                           001479
                                                               64



1    that since the undisputed evidence establishes that we

2    are an HCS program.   And under the law an HCS program

3    qualifies as a health care institution, under the

4    statute, which is a health care provider.

5                  Now, if the Court believes or is

6    troubled by whether we are properly certified as an

7    HCS program, despite all the evidence that we

8    have presented and was presented undisputed in the

9    record that we are an HCS program, then we would ask

10   the Court to reopen the evidence to allow us to

11   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

14   by the State of Texas.    And the certification

15   continues until terminated, and it is good as gold.

16   We can present that evidence under a Rule 270 motion

17   to reopen the evidence, which is subject to this

18   Court's discretion.

19                 I am sure that this Court does not want

20   to make a mistake on a matter of law like this when

21   it's involving so many millions of dollars.

22                 MR. POST:   Your Honor, I will speak only

23   to that one point.

24                 We strenuously object to any effort to

25   reopen the record.




                                                        001480
                                                                   65



1                    Rule 270 explicitly says, "... provided

2    that in a jury case no evidence on a controversial

3    matter shall be received after the verdict of the

4    jury."

5                    Counsel has essentially admitted they

6    did not prove their defense at trial.       And they cannot

7    prove it today.

8                    MR. HOLMAN:    Let me respond to that

9    point.

10                   Whether one is a health care provider or

11   not is not a jury issue.

12                   THE COURT:    Can you list for me any

13   other affirmative defenses that are questions of law

14   as opposed to questions of fact?

15                   MR. HOLMAN:    Well, whether it's a health

16   care liability claim is a question of law.

17                   THE COURT:    I said "other."   It's clear

18   what your argument is, that it's an affirmative

19   defense; but it's a question of law, not a question of

20   fact.    Can you list for me any other affirmative

21   defenses that are questions of law and not questions

22   of fact?

23                   MR. HOLMAN:    Whether the Tort Claims Act

24   applies.

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




                                                            001481
                                                                    66



1    affirmative defense?

2                    MR. HOLMAN:    It would be an affirmative

3    defense.    They would have to allege the Tort Claims

4    Act or it would be waived.

5                    THE COURT:    All right.     What else?

6                    MR. HOLMAN:    I'm thinking

7    of other statutory remedies.      Whether, whether the --

8    whether damages should be capped under the punitive

9    damages statute.    That wouldn't be an affirmative

10   defense; but it would be as a matter of law whether

11   damages should be capped, and you would apply the

12   statutory remedy.    And that wouldn't be a jury issue

13   either.

14                   THE COURT:    All right.     Any further

15   response, Mr. Sparks?

16                   MR. SPARKS:    Briefly.

17                   Mr. Holman indicated that there are

18   cases -- Brown versus Villegas was cited, 202 S.W.3d

19   803.   That talks about a doctor who came up under a

20   provision of health care provider.         But there was a

21   LabCorp that was alleging that they also came up under

22   that same protection because they had done business

23   with the doctor, and the Court ruled that they had to

24   prove it.   They didn't have a license.        They didn't

25   have a certification.    They denied Chapter 74




                                                               001482
                                                                   67



1    protections.

2                    THE COURT:     What was the name of that

3    case?

4                    MR. SPARKS:     Brown versus Villegas.

5                    THE COURT:     What is the citation for

6    that?

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

8    of San Antonio.

9                    THE COURT:     It was a San Antonio court

10   of appeals?

11                   MR. SPARKS:     Yes, sir.

12                   MR. POST:     Your Honor, I will just add

13   to that, for the Court's benefit.       I think the leading

14   case under Article 4590i that sets out the burden on

15   this issue was Webster versus Johnson, which was a

16   First District case from 1987.       It's at 737 S.W.2d

17   884.    And it held that applying the Article 4590i caps

18   is an affirmative defense that has to be asserted by

19   the defendant, and every affirmative defense where

20   there is any factual component has to be proved by the

21   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.




                                                           001483
                                                                68



1                  Brown versus Villegas, Page 806 of the

2    opinion, quote, "With regard to the assertion that

3    LabCorp meets the definition of a health care provider

4    because it is certified by the State of Texas,

5    LabCorp, as the movant, had the burden to present

6    evidence to establish that it is certified by the

7    State of Texas."    Cited:   Cf. City of Van Alstyne, a

8    Dallas court case that -- and they describe the City

9    of Van Alstyne case as saying, "Noting burden of proof

10   in a motion to dismiss for lack of jurisdiction is on

11   movant."

12                 In Brown versus Villegas, the Court goes

13   on to state, "Without that evidence, we cannot

14   determine whether LabCorp is a health care provider

15   such that the MLIIA is applicable to Brown's claim

16   against LabCorp."

17                 All right.     First of all, I want to

18   thank everyone.     This has been a very intense and

19   very, very well argued set of issues on this.     I know

20   there is a lot at stake, and I have taken it

21   very seriously.     And I think all clients have been

22   well served by the arguments of the counsel and the

23   efforts that counsel have made on this matter.     So,

24   first of all, I want to thank everyone for their

25   efforts on this.




                                                        001484
                                                                   69



1                   I am persuaded to grant the motion for

2    entry of judgment.   I am not persuaded to apply the

3    caps.   I am not persuaded to exclude Ms. Uduma from

4    liability.

5                   Do you have a judgment for me?

6                   MR. THWEATT:     I do, Your Honor.

7                   (Referenced document tendered to the

8                   Court and counsel.)

9                   MR. HOLMAN:     Your Honor, prior to

10   signing the judgment, would you entertain a motion to

11   reopen the evidence to allow us to present the

12   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

16   the reasons, the arguments Mr. Post made, the

17   arguments -- I mean, y'all substantively already

18   argued it anyway, so...

19                  Also, for purposes of the record, I am

20   denying the request to take judicial notice of those

21   Web sites.

22                  MR. HOLMAN:     Understood.

23                  THE COURT:     All right.     Do you need me

24   to sign an order?

25                  MR. HOLMAN:     Your Honor, I will present




                                                            001485
                                                                70



1    you with an order on that.

2                  THE COURT:     All right.   Well, you have

3    got it on the record.

4                  MR. HOLMAN:     Yes.

5                  I would like to, just for the purposes

6    of the record, present the Court with the

7    certification from the --

8                  THE COURT:     Well, I -- you can make a

9    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

13   finish with this; and then we will take up your bill

14   here in a moment.

15                 I am going to -- by the way, it's my

16   standard practice of not specifying what the court

17   costs are in a judgment since the clerk's office

18   generates a tax bill for the court costs.      So I'm

19   going to cross that part out of the judgment.

20                 MR. THWEATT:     Yes, Your Honor.

21                 THE COURT:     It's not that -- I am

22   awarding court costs to the Plaintiff.      I just defer

23   to the clerk's office to calculate the bill.

24                 Now, you all have double-checked your

25   calculations here and made sure that you have applied




                                                          001486
                                                                 71



1    the right fractions to the jury verdict, right?

2                   MR. THWEATT:     Yes, Your Honor.

3                   THE COURT:     All right.   Before I sign

4    this, Mr. Sparks, you have seen the proposed final

5    judgment Mr. Thweatt just handed to me?

6                   MR. SPARKS:     I have, Judge.

7                   THE COURT:     And you agree with entry of

8    it as he requested?

9                   MR. SPARKS:     I do, Judge.

10                  THE COURT:     Okay.   Again, as I said to

11   Mr. Thweatt, I'm just crossing out the number for the

12   court costs that are listed in here, not because I'm

13   excluding that, but it's simply because I defer to the

14   clerk's office to generate the tax bill.        I am

15   awarding court costs.     It's just up to them

16   to calculate the amount.

17                  MR. SPARKS:     Yes, Your Honor.    Thank

18   you.

19                  THE COURT:     All right.   I have signed

20   the final judgment.

21                  Mr. Holman, you wanted to make a bill

22   real quick?

23                  MR. HOLMAN:     Actually, Your Honor, I

24   will do that later.     I will present the Court with it

25   later.   I have looked at the document; and although




                                                            001487
                                                                 72



1    it's a valid document, I want to get it in admissible

2    form to present it before the Court.

3                  THE COURT:     All right.   Is there

4    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

8    on the record, every argument and every piece of

9    evidence that they think I should be considering or at

10   least gotten rulings on every piece of evidence?

11                 Can I hear an oral answer to that,

12   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

16   on the motion to reopen under Rule 270; I understand

17   that.

18                 MR. PLUMMER:     Yes, Judge.

19                 MR. HOLMAN:     We want to present it in

20   admissible form as to the certification that Four J's

21   was operating under during the time in question.

22                 THE COURT:     Are you going to do that

23   by way of written motion?

24                 MR. HOLMAN:     Yes, Your Honor.

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




                                                          001488
                                                                   73



1    schedule another oral hearing on the record for that,

2    do I?

3                    MR. HOLMAN:     I don't think so.

4                    THE COURT:     All right.

5                    MR. HOLMAN:     We will be filing, of

6    course, postjudgment motions; and we will have to have

7    an oral hearing on those.       But as far as the motion

8    dealing with the certification, no.

9                    THE COURT:     When you file your motion

10   for new trial or whatever motion, go ahead and get a

11   hearing date.    Don't wait.     Because basically Quee's

12   instructions are that whenever a motion for new trial

13   comes in, she brings it to me; and I set it for

14   hearing regardless.    So go ahead and get your hearing

15   because then, you know, we have a little

16   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

20   lot of really interesting issues.       I know y'all have a

21   strong interest on how this will be taken up upstairs.

22   I have a strong intellectual interest, at least, in

23   how they are going to resolve some of these issues.

24   So I say good luck to both sides.

25                   All right.     Y'all are excused.   Have




                                                             001489
                                                       74



1    a good weekend.

2

3                  (Conclusion of proceedings.)

4

5

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24

25




                                                  001490
                                                               75



1    THE STATE OF TEXAS

2    COUNTY   OF   HARRIS

3

4                  I, Kathleen Keese, Official Court
     Reporter in and for the 269th District Court of
5    Harris County, State of Texas, do hereby certify that
     the above and foregoing contains a true and correct
6    transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the
7    parties to be included in this volume of the Reporter's
     Record, in the above-styled and numbered cause, all of
8    which occurred in open court or in chambers and were
     reported by me.
9
                   I further certify that this Reporter's
10   Record of the proceedings truly and correctly reflects
     the exhibits, if any, admitted by the respective
11   parties.

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

14   __________________________________________________.

15
                   WITNESS MY OFFICIAL HAND this the
16   15th day of February, 2012.

17

18
                      /s/ Kathleen Keese
19                   ______________________________

20                   KATHLEEN KEESE
                     TEXAS CSR NO. 758
21                   Expiration: 12/31/12
                     Official Court Reporter
22                   269th District Court
                     201 Caroline, 13th Floor
23                   Houston, Texas 77002

24

25




                                                       001491
                             No. - - - - - - - -


                         IN THE FIRST COURT OF APPEALS
                                 HOUSTON, TEXAS


 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


                             VERIFICATION




STATE OF TEXAS   §
                 §
COUNTY OF TRAVIS §

      BEFORE ME, the undersigned authority, on this day personally appeared
William R. Peterson, who, after being duly sworn, upon his oath, stated as follows:

      1.    My name is William R. Peterson. I am over the age of 21,
            competent to make this affidavit, and have personal knowledge
            of the facts stated herein. Those facts are true and correct.

      2.    I am the attorney for the Relator in this original proceeding.

      3.    The Relator's Record in Support of Petition for Writ of
            Mandamus has been prepared at my direction to accompany the
            Petition for Writ of Mandamus. The documents contained in
            the Mandamus Record are true and correct copies of the
            originals.
4.   I have reviewed the Petition for Writ of Mandamus and confirm
     that every factual statement in the petition is supported by
     competent evidence in the Relator's Record and the Appendix
     attached to the petition.




                             William R. Peterson



SUBSCRIBED AND SWORN TO BEFORE ME on September 8, 2015.



                                                          ~~
                             Notary Public in and for the State offexas


                             My Commission Expires:
