CAYAMCELA v. ADVOCACY TRUST, LLC (Two Cases)

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the
Supreme Court of Georgia
No. S26A0229
Luis Cayamcela, M.D.
v.
Advocacy Trust, LLC et al

and

No. S26A0242
Hospitalist Services of Georgia P.C.
v.
Advocacy Trust, LLC et al

On Appeal from the Superior Court of Rockdale County
No. 2021-CV-1902

Argued: February 3, 2026 Decided: June 16, 2026

PINSON, Justice.
Holly Baumstark died in the hospital after giving birth to
her daughter by cesarean section. Her fiancé (as administrator of
her estate) and a conservator for her children sued several doctors
and their medical practices, the hospital where Baumstark was
treated, and other entities for medical malpractice resulting in
wrongful death. Most of the defendants settled, leaving only one
doctor and a medical staffing agency as defendants. After a trial,
the jury found those defendants liable and awarded damages for
pain and suffering to Baumstark’s estate and damages for wrong-
ful death to her children. On appeal, the defendants claim that an
evidentiary error and an instructional error each require a new
trial; that the trial court erred in declining to apply OCGA § 51-
13-1’s cap on noneconomic damages in medical malpractice cases
to the jury’s damages award; and that the trial court further erred
in awarding attorney fees under OCGA § 9-11-68. For the reasons
set out below, the judgment is affirmed.

I. Background
(a) In 2019, 27-year-old Holly Baumstark was pregnant
with her second child. During her pregnancy, Baumstark was di-
agnosed with placenta previa, a condition where the placenta “co-
vers all or part of the opening in the cervix.” This put her at a
higher risk for developing another condition called placenta ac-
creta spectrum (PAS) when “the placenta grows through the in-
trauterine wall,” essentially attaching to something outside of the
uterus such as another organ. A patient with PAS is at risk for
hemorrhaging.
That July, Baumstark gave birth to her daughter by cesar-
ean section (or “C-section”) at Piedmont Rockdale Hospital. Dur-
ing delivery, it became clear that Baumstark had developed PAS
and she suffered a “massive hemorrhage.” To control the bleeding,
Dr. Meredith Delp, the obstetrician who performed Baumstark’s
C-section, proceeded with an emergent hysterectomy. After sev-
eral hours of surgical repairs, 1 Baumstark was moved to the in-
tensive care unit for close monitoring.

1 Dr. Delp called in Dr. Richard Robinson, another obstetrician, for “an
extra set of surgeon’s hands” because Baumstark developing PAS was an “un-
anticipated finding.” Dr. Allen Futral, a urologist, was also called in to repair
damage that the placenta caused to Baumstark’s bladder. The surgery lasted
around five or six hours.

2
Appellant, Dr. Luis Cayamcela, was the doctor charged
with managing Baumstark’s care in the ICU. While in the ICU,
Baumstark’s condition declined. She went into respiratory arrest,
followed a few hours later by cardiac arrest, and she died the next
morning.
(b) Baumstark’s fiancé, Lee Blasingame, sued (on behalf of
his two children with Baumstark and as administrator of Baum-
stark’s estate) in Rockdale County Superior Court for medical
malpractice resulting in wrongful death. Later, appellee Advo-
cacy Trust, LLC, was appointed as limited conservator for the
children and was substituted as party plaintiff for the children’s
claims in lieu of Blasingame. At the time of trial, the only remain-
ing defendants were appellants Cayamcela and Hospitalist Ser-
vices of Georgia.2
At trial, the plaintiffs presented expert witness testimony
about the ways Cayamcela violated the standard of care as Baum-
stark’s doctor, including failing to ensure that additional IV ac-
cess was obtained and that an arterial line was placed, failing to
administer sufficient IV fluids, blood products, and medications,
failing to monitor and treat Baumstark’s electrolyte imbalance,
and failing to recognize and inform other doctors of Baumstark’s
need to return to surgery due to her continued bleeding. The jury
found Cayamcela and Hospitalist Services liable for Baumstark’s
death and returned a $42 million verdict in favor of plaintiffs. In
accordance with the verdict, the trial court entered a judgment
awarding $10 million to Baumstark’s estate for pain and suffering

2 Hospitalist Services Group is a Georgia based corporation that pro-
vides “[p]hysician staffing to third party client hospitalist groups.” Cayamcela
entered into a contract for “full-time employment” with Hospitalist Services
Group on February 1, 2019.

3
and $32 million to her children for her wrongful death.
After trial, the defendants moved for a new trial on several
grounds, including that the trial court erred by excluding certain
expert testimony, and incorrectly instructing the jury on the
plaintiffs’ burden of proof and proximate causation. They also
moved in the alternative to amend the judgment in accordance
with the $350,000 cap on noneconomic damages imposed by
OCGA § 51-13-1. The trial court denied both motions. With re-
spect to the damages cap, the court concluded that the defendants
had waived application of the cap by failing to mention the cap in
the pretrial order and raising it for the first time after the jury
returned its verdict. In the alternative, the trial court concluded
that that the portions of OCGA § 51-13-1 held unconstitutional in
Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731
(2010), could not be severed; that in any event, capping noneco-
nomic damages for wrongful death caused by medical malpractice
would violate the right to a jury trial under the Georgia Constitu-
tion; and that applying the damages cap to only noneconomic
damages for wrongful death would violate equal protection and
separation of powers.
For their part, the plaintiffs sought attorney fees under
OCGA § 9-11-68, which entitles a plaintiff to recover reasonable
attorney fees and expenses of litigation if a defendant rejects a
qualifying offer of settlement and the plaintiff recovers a final
judgment of greater than 125 percent of the settlement offer. Af-
ter concluding that the plaintiffs had made a qualifying offer that
the defendants had rejected, the trial court granted the request,
awarding around $11.8 million in attorney fees.
The defendants appealed to this Court, invoking our exclu-
sive jurisdiction over cases in which the constitutionality of a law

4
has been drawn in question. See Ga. Const. Art. VI, Sec. VI, Par.
II.

II. Analysis
The defendants raise four claims on appeal. They claim
that the trial court erred in failing to grant them a new trial on
two different bases: that the trial court erred in excluding certain
expert testimony, and that it erred in giving a jury charge that
shifted the burden to defendants to disprove liability. They claim
that the trial court erred in declining to apply the $350,000 cap
on noneconomic damages imposed by OCGA § 51-13-1 to the jury’s
verdict. And they claim that the trial court abused its discretion
in granting plaintiffs’ request for attorneys’ fees. We address each
claim in turn.

A. Expert Testimony
The defendants claim that the trial court erred by exclud-
ing as unreliable certain testimony of one of their experts, Dr.
Steven Clark, under OCGA § 24-7-702(b).3 A decision to exclude

3 Code section 24-7-702(b) provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise, if:
(1) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(2) The testimony is based upon sufficient facts or data;
(3) The testimony is the product of reliable principles and
methods; and
(4) The expert has reliably applied the principles and methods

5
evidence under Rule 702(b) is reviewed for abuse of discretion.
See Peavy v. State, ___ Ga. ___ (2026), S26A0455, slip. op. at 9
(Ga. May 5, 2026) (2026 WL 1215837) (citing Miller v. Golden Pea-
nut Co., LLC, 317 Ga. 22, 30 (2023)).
1. About a week before trial began, the defendants identi-
fied for plaintiffs several portions of deposition testimony from
Clark that they wanted to use at trial. In response, plaintiffs
moved to exclude or limit the use of Clark’s testimony. Clark, a
full-time faculty member at Baylor College of Medicine specializ-
ing in obstetrics and gynecology, was originally retained as an ex-
pert by a co-defendant doctor. After that co-defendant settled and
was dismissed from the case, Cayamcela identified Clark as a pos-
sible witness for trial.
After some back and forth, the defendants indicated that
they would seek to introduce only two parts of Clark’s testimony
that plaintiffs took issue with. The first portion of that testimony
was Clark’s answer to a compound question about when the
standard of care required taking Baumstark back into surgery
while in the ICU, and whether she was stable enough to do so.
The second portion of that testimony was Clark’s statement that
he knew “[Delp’s] violations of the standard of care and nothing
else” “resulted in the death of Ms. Baumstark.” The trial court
granted the plaintiffs’ motion to exclude the testimony, conclud-
ing that the testimony was not supported by sufficient evidence
of reliability because Clark testified that he hadn’t reviewed parts
of Baumstark’s ICU records “well enough” to “know enough infor-
mation” to answer questions about details of her care in the ICU.

to the facts of the case.

6
2. The defendants contend as an initial matter that the
trial court erred by waiting to exclude Clark’s testimony until af-
ter the final pretrial conference contemplated under OCGA § 9-
11-16. See OCGA § 24-7-702(d) (allowing the court to hold a pre-
trial hearing to determine if a witness qualifies as an expert and
whether the expert’s testimony satisfies Rule 702, but requiring
the hearing and any ruling to be “completed no later than the fi-
nal pretrial conference contemplated under Code Section 9-11-
16”). But they failed to preserve this argument for appeal. 4 The
defendants never argued below that the challenged testimony
could not be excluded after the final pretrial conference. Absent
“special circumstances” not present here, we do not consider ar-
guments raised for the first time on appeal. State v. Fed. Def. Pro-
gram, Inc., 315 Ga. 319, 343 (2022).
The defendants also contend that the trial court erred in
excluding the evidence as unreliable under Rule 702(b) because
plaintiffs never challenged the expert’s reliability under that sub-
section. But the plaintiffs’ motion in limine expressly identified
Rule 702 as one basis for its objections to Clark’s testimony, and
in doing so, they argued that this specific testimony was not sup-
ported by sufficient evidence of reliability.
On the merits, the defendants contend that the trial court
should not have excluded Clark’s testimony as unreliable.
Rule 702 requires a trial court to “assess the reliability of
proposed expert testimony.” Dubois v. Brantley, 297 Ga. 575, 580

4 The defendants who went to trial did not retain Clark as an expert
witness during discovery and provided the plaintiffs with the testimony they
intended to use at trial seven days after jury selection and only six days before
the beginning of evidence at trial. The plaintiffs moved in limine to exclude
that testimony five days later.

7
(2015). See also Am. Gen. Life Ins. Co. v. Schoenthal Fam., LLC,
555 F3d 1331, 1338 (11th Cir. 2009) (explaining that a trial court
must “determine that proffered expert testimony is both reliable
and relevant”). In doing so, the trial court must ask whether the
testimony of the expert is “based upon sufficient facts or data” and
“the product of reliable principles and methods,” and whether the
expert “has applied the principles and methods reliably to the
facts of the case.” OCGA § 24-7-702(b)(2). See McClain v.
Metabolife Intern., Inc., 401 F3d 1233, 1255 (11th Cir. 2005) (con-
cluding that expert testimony did not satisfy Rule 702 because
their opinions “were not based on sufficient data and were not the
product of reliable methods”). This role requires the trial court to
act as a “gatekeeper,” and the court has broad discretion to admit
or exclude expert testimony under this rule. Thelen v. Somatics,
LLC, 156 F4th 1115, 1132 (11th Cir. 2025) (“a trial court has “con-
siderable leeway” in exercising its discretion to admit or exclude
expert testimony”); McCorvey v. Baxter Healthcare Corp., 298 F3d
1253, 1256 (11th Cir. 2002) (“Daubert requires that trial courts
act as ‘gatekeepers’ to ensure that speculative, unreliable expert
testimony does not reach the jury.”). The court abuses its discre-
tion when it fails to act in this gatekeeping capacity. See McClain,
401 F3d at 1238. 5
The trial court here did not abuse its broad discretion when
it excluded the challenged portions of Clark’s testimony under
Rule 702(b). The trial court explained in its order that Clark’s tes-
timony lacked a sufficient basis in facts and data and pointed to

5 Because OCGA § 24-7-702 is based on Federal Rule 702, we look to
decisions of federal appellate courts, especially the United States Supreme
Court and the Eleventh Circuit, for guidance on applying it. Miller, 317 Ga. at
26.

8
Clark’s “admission that he was not familiar with Ms. Baumstark’s
care in the critical care unit because he had not reviewed those
records and was not asked to address that care.” This reasoning
finds at least some support in Clark’s deposition testimony. Dur-
ing his deposition, when Clark was asked about whether certain
actions would have been proper when Baumstark arrived in the
ICU, Clark said things like “I just haven’t looked at those records
... carefully enough, particularly the ventilation sequence”; “I
don’t know enough to answer that question because I haven’t paid
attention to that detail”; and “I don’t know those records well
enough because that’s not what I was asked to address, so I — I
don’t have enough information to tell you that answer.” And in
response to questions about Baumstark’s status in the ICU and
her electrolyte levels, Dr. Clark stated that his answer “involve[d]
someone whose specialty [he is] not” and that he would tell a jury
“here’s my opinion … but don’t believe me, believe the intensiv-
ist.” 6 The defendants respond that these issues with the factual
basis for Clark’s testimony go to its credibility, not admissibility.
But the “whole premise” of Rule 702 is that the trial court “must
act as a ‘gatekeeper’ to ensure the relevance and reliability of ex-
pert testimony.” Miller, 317 Ga. at 29 (quoting Dubois, 297 Ga. at
585). See also McCorvey, 298 F3d at 1256; Allison v. McGhan
Med. Corp., 184 F3d 1300, 1310 (11th Cir. 1999) (“‘Neither the
difficulty of the task nor any comparative lack of expertise can
excuse the judge from exercising the “gatekeeper” duties that the

6 Clark seemed to acknowledge that he could not speak to the actions
of all the other doctors or all parts of Baumstark’s care, stating that he did “not
have any formal opinions about the standard of care of anyone … who has a
different specialty than I have.” Clark specialized in obstetrics and gynecology;
Cayamcela was an internal medicine hospitalist with training in critical care
and managing ICU patients. Piedmont Rockdale had a “half open ICU, half
closed,” which meant that an intensivist was on duty during the day.

9
Federal Rules impose.’”). Even though this testimony may not
have compelled a trial court to exclude the challenged testimony,
it called the reliability of that testimony into enough doubt that
we cannot say the trial court abused its broad discretion by ex-
cluding the testimony.

B. Instructional Error
The defendants claim that the trial court erred by charging
the jury with an instruction that improperly shifted the burden of
proof from plaintiffs to defendants. That instruction told the jury
that “[t]here may be more than one proximate cause of an injury
or death,” and that “[t]he Defendants bear the burden of proof on
their contention as to whether or not the negligence of other med-
ical professionals was the sole proximate cause of Holly Ann
Baumstark’s injuries and death.”
Because the defendants failed to object to this instruction
at trial, our review on appeal is limited to whether there has been
a “substantial error in the charge which was harmful as a matter
of law.” OCGA § 5-5-24(c). But as with plain error review in crim-
inal cases, this substantial-error review is not available to a party
who has induced or affirmatively waived the error. Pearson v.
Tippmann Pneumatics, Inc., 281 Ga. 740, 742 (2007) (citing
Moody v. Dykes, 269 Ga. 217 (1998)) (“[I]nduced error based on a
charge specifically requested by counsel or the acquiescence of
counsel in the giving of a charge provides no ground for reversal
under OCGA § 5–5–24(c).”). For example, in Moody, counsel
waived an instructional error otherwise subject to review under
OCGA § 5-5-24(c) when he said at the end of a charge conference,
“All right. Well, then, I won’t—with that, I won’t object to any-
thing. I’ll accept it all.” See Moody, 269 Ga. at 220. And in the
analogous context of plain error review, we have said that “[a]n

10
affirmative waiver may occur, for example, when a defendant re-
quests a specific jury instruction but later withdraws such re-
quest.” Vasquez v. State, 306 Ga. 216, 229 (2019) (citing Walker v.
State, 301 Ga. 482, 485 (2017)).
The defendants here affirmatively waived this instruc-
tional error. Before the charge conference, the defendants had
proposed an instruction that stated essentially the opposite of the
challenged instruction: that the defendants did not have any bur-
den of proof as to whether someone else’s conduct caused Baum-
stark’s death. 7 And then, during a colloquy with the trial court,
defense counsel withdrew all the defendants’ proposed instruc-
tions, including that one. When the trial court asked defense
counsel if he wanted to add any pattern instructions from the de-
fendants’ proposed charges; if any non-pattern charges from the
defendants’ list needed to be discussed; and finally, if the defend-
ants had “anything to add to what we’ve have already approved,”
defense counsel indicated that they did not have anything to add
from the defendants’ proposed instructions, and he told the court
that he thought their charges were “covered by the patterns.” Nor

7 That charge read:

If you find from all the evidence that Dr. Cayamcela was not
guilty of any act of negligence or wrongdoing, a verdict in the
Plaintiffs’ favor is unlawful, even if the Defendants have not
satisfactorily accounted for the occurrence. In other words, it is
not necessary for the Defendants to prove to you what may
have caused Holly Baumstark’s death. If the evidence fails to
show by a preponderance that Dr. Cayamcela was negligent or
breached a duty owed to Holly Baumstark, then it is your duty
to return a verdict in favor of Defendants, although the cause
of Holly Baumstark’s death may still be a matter of specula-
tion.

11
did defense counsel speak up when plaintiffs’ counsel summed up
the colloquy, stating that it “[s]ounds like for the record we have
an agreed charge,” and the court replied, “Okay. Thank you. That
is great.” And on top of all that, the defendants stated at least
three times in response to the court’s questions that they did not
have any objections to the court’s proposed instructions, which in-
cluded the challenged instruction. By proposing and then effec-
tively withdrawing the opposite instruction, and then indicating
multiple times that they did not have any objections to the chal-
lenged instruction, the defendants affirmatively waived this in-
structional error. See Kimble v. State, 270 Ga. 311, 312 (1998) (“A
defendant who, in effect, withdraws a request to charge will not
be heard to complain on appeal that the trial court erred when it
failed to give the withdrawn charge.”); Smith v. State, 260 Ga.
274, 277 (1990) (defendant was “barred” from challenging trial
court’s failure to give a charge when his trial counsel “acquiesced
to the court’s suggestion,” elected one jury instruction, and “with-
drew” another charge request, “all without objection”).

C. Damages Cap
The defendants raise a number of claims of error related to
application of the statutory damages cap, OCGA § 51-13-1(b).
They claim that the trial court erred in concluding that the de-
fendants waived their request to apply that cap to the jury’s ver-
dict by failing to raise it in the pretrial order. And they claim that
the trial court erred in concluding that OCGA § 51-13-1(b) could
not be applied to limit the jury’s verdict in this case for a number
of reasons, including because applying the damages cap would vi-
olate the plaintiffs’ constitutional right to a jury trial. With re-
spect to the latter conclusion, the defendants urge this Court to
overrule Nestlehutt, which held that applying OCGA § 51-13-
1(b)’s cap to damages for pain and suffering and loss of consortium

12
in medical malpractice actions violates the right to trial by jury
guaranteed by the Georgia Constitution. 286 Ga. at 738. In the
alternative, they contend that even under Nestlehutt, that dam-
ages cap may be applied to limit damages awarded by a jury for
wrongful death.
Under our decision in Clark v. Leigh, which also issued to-
day, the damages cap of OCGA § 51-13-1(b) may not be constitu-
tionally applied to the verdict in this case. ___ Ga. ___ (2026),
S26A0349, slip op. at 47, 52 (June 16, 2026). In Clark, we held
that stare decisis preserves Nestlehutt’s holding. See id. at 15, 45.
And after applying ordinary principles of statutory construction
to OCGA § 51-13-1, we held that if even part of the jury’s award
in a medical malpractice action was for noneconomic damages to
which Nestlehutt’s holding applied, the statute’s damages cap
may not be applied to limit that award without violating the right
to a trial by jury. See id. at 47–52. We summed up the problem as
follows:
[T]he cap statute’s damages cap applies using a sin-
gle operative mechanism: combine all the noneco-
nomic damages awarded to all the parties into a sin-
gle number and then limit that number to $350,000.
No statutory text permits doing so only for some par-
ties and some damages. So, in a case like this —
where noneconomic damages to which the right to
trial by jury applies are awarded as part of a jury’s
verdict in a medical malpractice action — there is
simply no way to apply the statute’s cap on noneco-
nomic damages as written without violating the
right to trial by jury.

Id. at 52. Just so here.

13
In light of Clark and the resulting conclusion that
OCGA § 51-13-1’s cap may not be applied to the jury’s damages
award here, we need not address the defendants’ remaining
claims seeking to apply that cap to some or all of that award.

D. Attorney Fees
The defendants claim that the trial court erred in awarding
attorney fees at all, because the plaintiffs did not make a valid
offer of settlement under OCGA § 9-11-68(a). And they contend
that in any event, the court erred in awarding fees in the amount
the plaintiffs’ sought. We address each argument in turn.

1. Awarding Attorney Fees under OCGA § 9-11-68
Code section 9-11-68 was enacted to encourage tort liti-
gants “to make and accept good faith settlement proposals [and
so] avoid unnecessary litigation.” Ga. Dep’t. of Corr. v. Couch, 295
Ga. 469, 471 (2014) (quotation marks omitted). Under that Code
section, if a plaintiff makes a valid offer of settlement that is re-
jected by defendants and later “recovers a final judgment in an
amount greater than 125 percent of such offer of settlement,” the
plaintiff is entitled to recover “reasonable attorney’s fees and ex-
penses of litigation.” 8 OCGA § 9-11-68(b)(2). A valid offer of set-
tlement must satisfy eight requirements set forth in OCGA § 9-
11-68(a). 9

8 It is undisputed that plaintiffs recovered more than 125 percent of
their $3 million offer to settle as required by section (b)(2).
9 In its entirety, OCGA § 9-11-68(a) provides:

At any time more than 30 days after the service of a summons
and complaint on a party but not less than 30 days (or 20 days
if it is a counteroffer) before trial, either party may serve upon

14
About a year after filing suit, the plaintiffs here served the
defendants with an offer of settlement under OCGA § 9-11-68.10
The defendants rejected the offer. So, after the entry of judgment,
the plaintiffs moved to recover attorney fees and expenses. 11 The
trial court granted that motion and awarded just over $11.8 mil-
lion in fees and roughly $216,403 in expenses under OCGA § 9-

the other party, but shall not file with the court, a written offer,
denominated as an offer under this Code section, to settle a tort
claim for the money specified in the offer and to enter into an
agreement dismissing the claim or to allow judgment to be en-
tered accordingly. Any offer under this Code section must:
(1) Be in writing and state that it is being made pursuant to
this Code section;
(2) Identify the party or parties making the proposal and the
party or parties to whom the proposal is being made;
(3) Identify generally the claim or claims the proposal is at-
tempting to resolve;
(4) State with particularity any relevant conditions;
(5) State the total amount of the proposal;
(6) State with particularity the amount proposed to settle a
claim for punitive damages, if any;
(7) State whether the proposal includes attorney’s fees or other
expenses and whether attorney’s fees or other expenses are
part of the legal claim; and
(8) Include a certificate of service and be served by certified
mail or statutory overnight delivery in the form required by
Code Section 9-11-5.
10 The offer was filed by Blasingame on behalf of his children and not
in his capacity as administrator of Baumstark’s estate.
11 By this point, Advocacy Trust had been substituted as limited con-
servator for the claims brought by Baumstark’s children.

15
11-68.
The defendants contend that the plaintiffs’ offer did not
satisfy subsection (a)(7), which requires an offer to “[s]tate
whether the proposal includes attorney’s fees or other expenses
and whether attorney’s fees or other expenses are part of the legal
claim.” OCGA § 9-11-68(a)(7). But the plaintiffs’ offer met this re-
quirement. The offer explained that “Plaintiffs will be responsible
for paying any attorneys’ fees, costs, and expenses incurred for
the claims brought.” In other words, the proposal did not “include”
attorney fees or expenses; instead, the plaintiffs would have paid
them. And such fees and expenses were “incurred for” the claims,
not “part” of them. This argument fails.

2. Amount of Attorney Fees
The defendants contend that the trial court also erred in
calculating the amount of the roughly $11.8 million in fees. We
review a trial court’s decision as to the amount that comprises
reasonable attorney fees for abuse of discretion. Simmons v.
Cmty. Renewal and Redemption, LLC, 286 Ga. 6, 9 (2009)). If the
court makes a legal error that “infect[s]” the exercise of its discre-
tion, then the trial court has abused its discretion. Rockdale
Hosp., LLC v. Evans, 306 Ga. 847, 851 (2019).
The defendants rest their claim of error on the dual prem-
ises that trial courts may not consider contingency fee agreements
at all when awarding attorney fees, and that the trial court here
relied “almost entirely” on the plaintiffs’ contingency fee agree-
ment. But both premises are mistaken.
For their premise that trial courts may not consider contin-
gency fee agreements at all when considering attorney fees, the
defendants rely on OCGA § 9-15-16 and our decision in Couch.
See 295 Ga. at 471. But neither authority quite holds up that

16
premise. Code section 9-15-16 provides that when a party to a civil
action seeks to recover attorney fees under a statute like
OCGA § 9-11-68, “a contingent fee agreement between such party
and such party’s attorney shall not be admissible as proof of the
reasonableness of the fees.” OCGA § 9-15-16(b). But even assum-
ing that recently enacted statute applies to the award of attorney
fees here, 12 it only precludes admitting a contingency fee agree-
ment “as proof that the requested fees are reasonable.” Id. Noth-
ing in the statute suggests that the court may not consider the
agreement for other purposes, like the total fees incurred. As for
Couch, we held there that although a contingency fee agreement
is not “conclusive” and does not “bind the court” in determining
the reasonable value of attorney fees, the agreement can be a
“guidepost” in that assessment. Couch, 295 Ga. at 484.
As for the defendants’ premise that the trial court relied
“almost entirely” on the fee agreement, the trial court’s order
shows otherwise. The court explained that although the plaintiffs
“prove[d] their total incurred fees by way of their fee agreement
and testimony about their fee agreement,” they proved the rea-
sonableness of their fees “not by way of their fee agreement or
even testimony about the agreement,” consistent with OCGA § 9-
15-16. Instead, the plaintiffs established the reasonableness of
the requested fees through other means, including “testimony, in-
cluding expert testimony, from their attorneys” that a 40-percent

12 The plaintiffs here moved for attorney fees under OCGA § 9-11-68
on March 19, 2025. Code section 9-15-16 became effective April 21, 2025. And
the trial court awarded attorney fees in an order issued on July 3, 2025. The
trial court expressly addressed OCGA § 9-15-16 and found that the plaintiffs
proved the reasonableness of their fee request “in compliance with” that stat-
ute, and the parties do not dispute whether the statute applies here.

17
fee was “usual or customary” and a “valid indicator” of the profes-
sional services; “hourly estimates” that were “credible and per-
suasive”; “expert testimony about the reasonableness of their al-
location”; and a “detailed chart identifying the work performed.”
We see no abuse of discretion in the trial court’s assessment or
conclusions as to the amount of attorney fees and expenses
awarded.
Judgment affirmed. All the Justices concur.

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