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Stolte v. Fagan

In civil cases as well as in criminal cases, once the trial court sustains an objection to improper argument, the trial court is required to apply some remedial measure to address the harm resulting from the impropriety, even if counsel does not request such a measure.

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This is an appeal from the judgment entered on the defense verdict in a dental malpractice action. We affirmed in Stolte v. Fagan, 311 Ga. App. 123 714 SE2d 339 2012. In Stolte v. Fagan, 291 Ga. 477 731 SE2d 653 2012, our Supreme Court reversed and remanded. We therefore vacate our earlier decision.

The appellant enumerated refusal to strike certain prospective jurors for cause and failure to rebuke defense counsel after an objection to his closing argument had been sustained. As to both we held that we could not reach the merits, and as to both the Supreme Court reversed. The Supreme Court also reversed our determination that we could not reach the merits of an improper-argument issue that was not preserved in the trial court. That error, the Supreme Court held, should be analyzed to determine whether the improper argument, in reasonable probability, changed the result of the trial.

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