Stolte v. Fagan
311 Ga. App. 123
Ga. Ct. App.2011Background
- Stolte and Scott Ross sued dentist M. James Fagan III for medical malpractice in Georgia state court.
- During closing, defense counsel referred to Fagan's reputation; objection was sustained and court instructed to move on.
- Defense later argued reputation again; Stolte asked for immediate curative instruction, which the court did not provide at that moment.
- General jury instruction prohibited sympathy or bias based on reputation, but Stolte waived further objections and later renewed objections were deemed untimely.
- Stolte contended four jurors should have been stricken for cause; trial court did not strike them, forcing Stolte to use peremptory strikes.
- Court applied Harris and related authority to assess harm from improper juror seating in civil case context and affirmed judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there waiver of objections to reputation remarks? | Stolte argues trial court should rebuke and curative instruction be given. | No immediate curative instruction required; objection waived. | Objections were waived; no reversible error. |
| Should four jurors have been stricken for cause requiring reversal? | Stolte needed to strike improperly seated jurors for cause. | Whether for-cause strikes were proper is irrelevant if peremptories could cure. | No reversal; per Harris/related rule, harm not shown without exhaustion of peremptories. |
| Whether Harris rule applies to civil cases in evaluating improper strike for cause? | Civil cases should follow Harris rule for unqualified jurors. | Harris rule not extended to civil cases. | Harris rule not extended to civil cases; harm not shown here. |
Key Cases Cited
- Mote v. State, 297 Ga.App. 13 (2009) (untimely objections to improper closing arguments)
- Hamilton v. Shumpert, 299 Ga.App. 137 (2009) (timeliness of objections to improper closing arguments)
- Whitley v. Gwinnett County, 221 Ga. App. 18 (1996) (timeliness of objections to closing arguments)
- Vega v. La Movida, Inc., 294 Ga.App. 311 (2008) (closing argument improper references)
- Harris v. State, 255 Ga. 464 (1986) (peremptory strikes and unqualified jurors; death-penalty context; omniscience rationale)
- Park v. State, 260 Ga. App. 879 (2003) (Harris rule extended to civil cases in limited fashion)
- Guoth v. Hamilton, 273 Ga.App. 435 (2005) (Harris rule not extended to civil cases; exhaustion not shown)
- Wallace v. State, 275 Ga. 879 (2002) (Harris framework applied over older civil cases)
- Steele v. Atlanta Maternal-Fetal Medicine, 283 Ga.App. 274 (2007) (civil exhaustion of peremptories; harm required)
- Sellers v. Burrowes, 283 Ga.App. 505 (2007) (new trial for improper strike where peremptories exhausted)