Stolte v. Fagan

• Decision Date: 10 September 2012
• Docket Number: No. S11G1871.,S11G1871.
• Citation: 291 Ga. 477,731 S.E.2d 653,12 FCDR 2736
• Parties: STOLTE, et al. v. FAGAN, et al.
• Court: Georgia Supreme Court

291 Ga. 477

731 S.E.2d 653

12 FCDR 2736

STOLTE, et al.

v.FAGAN, et al.

No. S11G1871.

Supreme Court of Georgia.

Sept. 10, 2012.

Robert C. Lamar, Keith Allen Pittman, Lamar, Archer & Cofrin, LLP, Atlanta, for appellant.

Terrell William Benton, III, Dean Taylor Cleaveland, Hall, Smith, Booth & Slover, for appellee.

HUNSTEIN, Chief Justice.

We granted certiorari to the Court of Appeals in this professional negligence action to address (1) the standard for harmless error where a trial court refuses to strike an unqualified juror and (2) the trial court's duties under OCGA § 9–10–185 to remedy prejudicial statements by counsel. Finding that the Court of Appeals erred in its analysis of both issues, we reverse and remand for further proceedings.

Plaintiffs Kerry Stolte and her husband, Scott Ross, filed a malpractice action against Defendant M. James Fagan, III and his dental practice, alleging that Dr. Fagan had negligently severed Stolte's lingual nerve in the course of a wisdom tooth extraction. Following a five-day trial and two days of deliberations, the jury returned a defense verdict. After Stolte's motion for new trial was denied, she appealed, alleging errors in jury selection and closing argument.

In her appeal, Stolte claimed that the trial court had erred in refusing to strike for cause four jurors who were predisposed in favor of medical professionals and/or against medical malpractice plaintiffs. In addition, Stolte claimed that, during closing argument, defense counsel had improperly urged the jury to consider the impact of a plaintiff's verdict on Dr. Fagan's professional reputation and that the trial court had failed to sufficiently address this impropriety. The Court of Appeals affirmed, Stolte v. Fagan, 311 Ga.App. 123, 714 S.E.2d 339 (2012), holding that Stolte could not prove she was harmed by the trial court's refusal to strike the four allegedly biased jurors because she did not show that she had been forced to exhaust her peremptory strikes to eliminate these jurors. Id. at 125–126(2), 714 S.E.2d 339. The Court of Appeals further held that Stolte had waived her objection to one instance of allegedly improper closing argument and had acquiesced in the trial court's response to the other, thereby foreclosing further review of those claims. Id. at 124–125(1), 714 S.E.2d 339. This Court granted Stolte's petition for writ of certiorari to address both of these holdings.

1. The first issue we consider is whether a civil litigant who appeals a trial court's refusal to excuse an allegedly unqualified juror must show that she used all her peremptory strikes ¹ as a prerequisite to proving the harm required to establish reversible error. In the criminal context, we have previously resolved this question, expressly declining to require exhaustion of peremptory strikes as a condition of establishing harm. Harris v. State, 255 Ga. 464, 465(2), 339 S.E.2d 712 (1986) (“[t]he defendant's use of his peremptory strikes will ... no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror”); accord Wallace v. State, 275 Ga. 879(3), 572 S.E.2d 579 (2002) (reiterating Harris rule and overruling Court of Appeals cases that had ignored it). Thus, the only issue we must resolve here is whether this principle applies equally in the civil context. See Guoth v. Hamilton, 273 Ga.App. 435(1), 615 S.E.2d 239 (2005) (noting that Harrisrule has not been expressly applied to civil cases).

Having reviewed our case law on the topic and the policy underpinnings of the Harris rule, we discern no sound reason for limiting its scope to criminal cases. In justifying its approach, the Harris court emphasized the defendant's statutory right to “a panel of ... qualified jurors. [Cit.]” Harris, 255 Ga. at 465(2), 339 S.E.2d 712. See also OCGA § 15–12–125 (recognizing right to demand “full panel of ... competent and impartial jurors from which to select a jury”). This right to strike a jury from a full panel of qualified and competent jurors applies equally to civil litigants as to parties in criminal cases. See OCGA § 15–12–122(a)(1) & (b) (affording civil litigants the right to “a full panel of ... competent and impartial jurors from which to select a jury”); accord OCGA § 15–12–123(a). In other words, litigants—criminal and civil—are entitled to the removal of unqualified jurors before they begin exercising their peremptory strikes.

In addition, as noted by Justice Gregory, whose special concurrence on the topic was embraced by the Harris court, “[t]here are too many variables which may give rise to the non-use of a peremptory challenge” to justify viewing the non-use of strikes as conclusive proof of the harmlessness of an erroneous failure to strike for cause. Blankenship v. State, 247 Ga. 590, 597, 280 S.E.2d 623 (1981) (Gregory, J., concurring specially); see also Harris, 255 Ga. at 465(2), 339 S.E.2d 712 (citing Blankenship special concurrence). Again, given that this rationale holds just as true for civil cases as for criminal cases, there is no logical reason to apply a different rule in the civil context.

In sum, the policy underlying the Harris rule, to facilitate the attainment of a fair and impartial jury, is no less important to civil litigants as it is to parties in criminal cases. See Kim v. Walls, 275 Ga. 177, 178, 563 S.E.2d 847 (2002) (noting “primary duty” of trial judge “[i]n both civil and criminal contexts ... to ensure the selection of a fair and impartial jury”). The Harris rule, therefore, should apply in both contexts. The Court of Appeals erred in holding otherwise, and the case must be remanded to it for review of the merits of Stolte's claims regarding the qualification of each of the four jurors in question.

2. We next consider Stolte's claims regarding closing argument. As defense counsel was concluding his closing argument, he stated, “[t]his is a very serious matter. [Dr. Fagan's] conduct, his reputation, his treatment, his care has been called into question this week.” Stolte's counsel immediately objected, and during a sidebar the trial court instructed defense counsel to “move on.” Resuming his closing, defense counsel referred on several occasions to the “trust” Dr. Fagan's patients place in him: “Jim Fagan has dedicated his entire professional career to treating patients.... Patients everyday in this town, the town we all live in, trust Jim Fagan for extractions, for dental implants, putting prosthetic teeth in, they trust him for root canals, they trust him for cleanings.” At the conclusion of defense counsel's closing argument some 90 seconds later, Stolte's counsel signaled an objection, and, after a recess, noted defense counsel's apparent disregard of the court's earlier admonition and requested an immediate curative instruction. The trial court refused this request, opting to address the issue during its general charge to the jury by inserting a reference to “reputation” into the standard sympathy charge it had already agreed to give. Stolte's counsel noted for the record his exception to the court's ruling and subsequently raised this issue on appeal, claiming the trial court had failed to fulfill its duty under OCGA § 9–10–185 to prevent counsel's prejudicial statements.

The Court of Appeals refused to review the merits of Stolte's claim, finding that, by failing to object further when the trial court instructed defense counsel to “move on,” Stolte had acquiesced in the trial court's initial response to her objection, and that, by failing to object contemporaneously when defense counsel made his remarks concerning “trust,” Stolte had waived any further objection. Stolte v. Fagan, 311 Ga.App. at 124–125(1), 714 S.E.2d 339. In so holding, we find, the Court of Appeals has imposed a greater burden on the objecting party than the plain language of OCGA § 9–10–185 requires.

(a) OCGA § 9–10–185 reads:

[w]here counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. In its discretion, the court may order a mistrial if the plaintiff's attorney is the offender.

Id. In O'Neal v. State, 288 Ga. 219, 702 S.E.2d 288 (2010), we addressed a similar waiver issue under OCGA § 17–8–75, the criminal code analogue to, and virtual carbon copy of, OCGA § 9–10–185.² There, the trial court sustained the defendant's objection to improper argument, directing the prosecutor to “proceed on,” but did not give a curative instruction, and the defendant requested no additional action. Id. at 219, 702 S.E.2d 288. Concluding that the defendant had not waived his right to appellate review of the trial court's handling of the matter, we held:

Nowhere in the statute is there a requirement for ... counsel to specifically request additional remedies after interposing an objection to the improper statements made by [opposing counsel]. To the contrary, the plain language of [the statute] refers to the trial court's independent duty, after ... counsel's objection, to rebuke [opposing counsel], give an appropriate curative instruction, or grant a mistrial in the event that [opposing counsel] has injected into the case prejudicial statements on matters outside the evidence. Consistent with the plain language of [the statute], this Court's most recent authorities interpreting the statute have allowed appellate review of a trial court's failure to rebuke a prosecutor or give a curative instruction where defense counsel did nothing more than interpose an objection to the prosecutor's improper statements. [Cits.]

Id. at 221–222(1), 702 S.E.2d 288. In other words, once an objection to improper argument is sustained, “[t]he objecting attorney is under no duty to request [remedial] measures; at that...