Did the Plaintiff’s Attorney make an Improper Argument on Punitive Damages in a Personal Injury Case?
In a personal injury case, a jury found for a plaintiff and awarded him compensatory and punitive damages in his action against a tree clearing company. He was injured as a resulted of the company’s tree-cutting operations in the median of Interstate 85. A tree fell across both northbound lanes and struck the plaintiff’s vehicle. The trial court entered judgment on the verdict. On appeal, the tree clearing company argued that the trial court erred in allowing the plaintiff’s trial counsel to make improper arguments in closing arguments.
Background
The plaintiff was injured on December 15, 2016, when a tree fell onto an interstate highway and struck his vehicle. The tree had been dropped by the tree clearing company, which was doing cleanup work on the side of the highway at the time. The company admitted that it had acted negligently, so the trial focused on causation and damages.
The plaintiff sustained several injuries when the tree fell on his car. Right after the accident, he was sore and had constant migraine headaches. He also had cuts on several places of his body, as well as glass in both eyes, which became infected. He was later diagnosed with a hip injury that his doctor said was a prior condition aggravated by the accident. Some of his injuries got better over time. However, he also experienced other medical issues that were more permanent—like frequent, debilitating headaches, shoulder and neck pain, and hip and back pain.
These issues impacted the plaintiff’s life. At the time of the accident, he owned a trucking business, and said that after the accident he “had to let go of his truck and the dreams of still being able to run his own business.” Plus, his relationships with his wife and children suffered: he could no longer engage in certain activities with his children or do household work, and he could no longer participate in activities that he’d enjoyed before the accident, such as horseback and motorcycle riding, bowling, woodworking, and hiking.
The plaintiff went to numerous doctors to address his injuries, one of whom recommended that he have hip surgery, which would mean a year of recovery. His doctor said that, without surgery, he’d continue to have hip pain. And a medical expert opined that even if the surgery went well, “it’s near certainty that [the plaintiff] would continue to have some pain and possibly limitations of range of motion in his hip. …” At the time of trial, the cost of his medical treatments was $30,000, and the cost of the recommended surgery was $54,000, for a total of about $85,000 in past and future medical treatments.
After deliberations, the jury reached verdicts in the plaintiff’s favor of $2.5 million in compensatory damages and $10,000 in punitive damages.
Was the Plaintiff’s Closing Argument Improper?
The tree clearing company argued on appeal that the trial court erred by allowing the plaintiff’s counsel to make arguments during closing that were improper and violated the trial court’s earlier ruling. It conceded that it didn’t contemporaneously object when the arguments were made but argued that the allegedly improper arguments constituted plain error.
Presiding Judge Christopher J. McFadden wrote that a contemporaneous objection is required when the moving party believes a motion in limine has been violated during argument. As such, the tree clearing company waived any argument on an improper closing argument.
The company didn’t argue that the trial court failed to exercise his discretion under O.C.G.A. § 51-12-12. Judge McFadden explained that the Court of Appeals generally presumes that a trial court understood the nature of its discretion and exercised it unless the record shows otherwise.
The tree company also didn’t show that the trial court’s exercise of discretion in considering O.C.G.A. § 51-12-12 was infected by a significant legal error or a clear error as to a material factual finding.
In this case, the jury was asked to consider pain and suffering as part of the compensatory damages award. In Georgia, damages may be awarded for past, present, and future pain and suffering beginning at the time of the injury for which the lawsuit was filed. Such damages “are measured by the enlightened conscience of a fair and impartial jury. There’s no yardstick against which damages for pain and suffering are to be measured, the judge noted, quoting and earlier decision.
The trial evidence, viewed in the light most favorable to the judgment, showed that the plaintiff has suffered pain since the accident, that he continued to suffer pain, and that he would likely experience pain in the future, including pain associated with future surgery. Although the company disputed the strength or credibility of that evidence, nothing in the trial court’s order indicated that it made any erroneous factual findings or applied incorrect legal principles in concluding that the compensatory damage award wasn’t inconsistent with the preponderance of evidence in the case.
Finally, Judge McFadden found that the tree clearing company didn’t show that the jury’s compensatory damages award “was so excessive … as to be irrational and thus the apparent result of jury bias, prejudice, or corruption.” The company asserted that the plaintiff’s counsel made various arguments in closing that invited the jury to award compensatory damages for punitive reasons. For example, the company pointed to these statements:
- If the tree clearing company “won’t learn from their mistakes on their own, somebody’s got to make them”;
- Assertions that the tree clearing company’s “greed had caused them to ignore any sense of safety”;
- The use of analogies in a way that the tree clearing company said invited the jury to assess the case through their own personal experience rather than based on the trial evidence, such as comparing the tree clearing company’s actions to those of a misbehaving child;
- Suggestions that the jury could consider payments that the tree clearing company made to expert witnesses in calculating compensatory damages;
- Argument that the plaintiff was entitled to “the full measure of justice”; and
- An instruction that “the first thing” the jury should do upon receiving the special verdict form is to “check yes on punitives.”
The tree clearing company also argued that the plaintiff’s counsel engaged in an improper “Golden Rule” argument—which urges the jurors to place themselves in the position of plaintiff or to allow such recovery as they would wish if in the same position.
But the tree company didn’t object to any of these arguments at trial.
Judge McFadden and the Court of Appeals concluded that this case included a request for punitive damages, the trial court instructed the jury on the difference between punitive and compensatory damages, and the trial court expressly found that the jury had not been confused about that difference.
As such, there was evidence at trial that supported an award of compensatory damages that included pain and suffering. The judgment was affirmed. S. Clearing & Grinding v. Garcia, 2025 Ga. App. LEXIS 98 (Ga. App. March 5, 2025).
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