Key Points

  • The Georgia Court of Appeals held that OCGA § 9-10-184(c)(1), as amended effective April 21, 2025, requires noneconomic-damages argument to be rationally related to evidence of noneconomic damages and bars references to objects or values with no rational connection to the facts proved.
  • The court held that a plaintiff's closing arguments tying pain-and-suffering damages to a defense expert's $8,000 trial-day fee and to minimum-wage rates violated the amended statute, even though the expert's fees were in evidence.
  • The court rejected Wal-Mart's argument that the amended statute bans per diem or unit-value arguments, holding that counsel remains entitled to argue the worth or value of noneconomic damages.
  • Because the trial court denied both a mistrial and a curative instruction, and the $975,000 verdict far exceeded $186,000 in medical bills, the court found the improper argument could have affected the verdict and reversed for a new trial.

The Georgia Court of Appeals on Oct. 29 threw out a $975,000 jury verdict against Wal-Mart in a slip-and-fall case, holding that the plaintiff's lawyer broke the state's newly rewritten limits on closing arguments by asking jurors to measure her pain and suffering against a defense expert's $8,000 daily fee and the minimum wage.

Judge Pipkin wrote for a unanimous three-judge panel, joined by Presiding Judge Dillard and Judge Gobeil. The panel reversed the judgment and sent the case back for a new trial, faulting the trial judge for refusing Wal-Mart's requests for a mistrial or a curative instruction, a directive meant to remove an improper impression from jurors' minds.

The decision construes OCGA § 9-10-184 as Georgia's 2025 tort-reform legislation rewrote it, effective April 21, 2025. The panel held that the new text marks a real change from the 1960 version, which for decades had let lawyers suggest dollar figures for pain and suffering so long as they conformed to the evidence. At the same time, the court refused Wal-Mart's request to ban outright the "per diem" arguments, in which lawyers ask jurors to assign a value to each hour or day of a plaintiff's suffering.

Ruby Medders sued Wal-Mart in September 2022 over knee and ankle injuries she said she suffered in a fall during a November 2020 visit to a Wal-Mart store in Valdosta. She had some pre-existing knee problems, and at a January 2026 jury trial she asserted that her pain intensified after the fall and eventually required surgery. Wal-Mart maintained that the injury was pre-existing and that the fall did not make the later surgeries necessary.

While cross-examining Wal-Mart's medical expert, Medders' counsel highlighted that the physician charged $2,000 an hour as an expert witness and $8,000 per trial day. In closing, while addressing pain-and-suffering damages, counsel told jurors that if the defense expert had come to court for the last three days, he "would have charged $8,000 for a full day."

Wal-Mart objected under the 2025 amendments. After extended argument at the bench, the trial court, "while concerned," allowed the argument because the expert's rates were in evidence. The panel noted in a footnote that the trial judge had been interpreting "novel statutory authority on the fly during closing argument" while an "aggravated" jury waited.

Medders' counsel then suggested the expert's per diem fee equaled $3 million a year. Wal-Mart objected to what it called "phantom numbers" and moved for a mistrial or, alternatively, "a really good curative instruction." The court denied both. Counsel next proposed that jurors value Medders' suffering at an hourly rate closer to minimum wage, between $7.25 and $12.15 an hour, and the jury returned a general verdict of $975,000.

Judge Pipkin traced the old statute's history to Hardwick v. Price, a 1966 decision in which the court affirmed a verdict after a lawyer asked jurors to award "a dime an hour, the price of a measl[y] bottle of Coca-Cola." He wrote that such "unit value" arguments "referencing arbitrary sums have continued more than a half-century later," citing recent cases including one in which counsel invoked the salaries of chief executives and professional athletes.

The rewritten statute permits argument over the value of noneconomic damages, which it defines to include physical and emotional pain, suffering, anxiety and mental anguish. But under the new text, as the panel summarized it, the argument must be "rationally related to the evidence of noneconomic damages," and the attorney must "not make reference to objects or values having no rational connection to the facts proved by the evidence."

Medders had argued that the core provision on closing argument was "essentially the same" under both versions. The panel disagreed. It held that the new law restricts argument to what is "rationally related specifically to evidence of noneconomic damages" and agreed with Wal-Mart that the references to the expert's rate and to $7.25 "had no rational connection to Plaintiff's noneconomic damages."

The court also rejected Medders' contention that Wal-Mart's objection was really an evidentiary complaint under Georgia's Rule 403, which lets judges exclude evidence whose value is substantially outweighed by the risk of unfair prejudice. "This argument misses the mark," Judge Pipkin wrote, because Rule 403 "concerns whether evidence is admissible in the first instance, while OCGA § 9-10-184(c)(1) concerns how the evidence adduced at trial may be presented to the jury in a closing argument." Under the evidence at trial, the court held, "the arguments concerning minimum wage and the expert's fee were improper under the new statute."

Wal-Mart had pressed a broader theory: that per diem arguments "are impermissible because, as a matter of logic, an hourly rate paid twenty-four hours per day for the rest of an individual's life has no rational connection to noneconomic damages." The panel declined to adopt it. Such arguments "concern the manner of formulating or calculating damages," Judge Pipkin wrote, and the statute expressly entitles counsel to argue "the worth or value of noneconomic damages."

On harm, the court pointed to the statute's command that a trial judge "shall take remedial measures" when counsel makes a prohibited argument, including rebuking counsel and instructing the jury. Under the court's precedent, an appellate court will reverse when "the uncorrected improper argument could have affected the jury's verdict."

The panel found that standard met. Medders sought only $186,000 in medical bills, the opinion said, but asked for about $950,000 in noneconomic damages and told jurors an appropriate award could be $1,136,000. The court said it had "little trouble concluding" that the uncorrected argument could have affected the $975,000 verdict.

The case now returns to the trial court for a new trial. A notice on the opinion states that motions for reconsideration must be received by 4:30 p.m. on the 10th day after the decision.