SIMMONS v. WATSON (2026)

In this wrongful death suit against Judy Simmons arising from an auto accident, the jury awarded the family and estate of Deborah Bates (“the plaintiffs”) over $82 million in compensatory damages, punitive damages, and attorney fees and expenses.¹ The trial court denied Simmons's motion for new trial, and this appeal followed. On appeal, Simmons argues that the trial court erred by admitting a prior DUI to impeach her testimony; the plaintiffs’ counsel made an impermissible “Golden Rule” argument in closing; and there was insufficient evidence to support the attorney fee amount under OCGA § 13-6-11. After a thorough review of the record, and for the reasons that follow, we affirm the denial of the motion for new trial, but vacate the award of attorney fees, and remand the case for further proceedings.

1. Facts.

Construed in the light most favorable to the plaintiffs, Yash Solutions v. New York Global Consultants Corp., 352 Ga. App. 127, 132(1), 834 S.E.2d 126 (2019), the record shows that, in 2012, Simmons pled guilty to driving while intoxicated due to her use of Xanax, Ambien, Zoloft, two muscle relaxers, and two pain medications. She was given probation and community service. In July 2018, Simmons was driving with her son at an excessive rate of speed when she ran a stop sign and was struck by Bates's vehicle. Simmons's car rolled over before coming to a stop. Bates's vehicle ran into some trees, and she had to be extricated from the car by emergency personnel. Bates remained alert and conscious, and was taken to the hospital with gruesome life-threatening injuries. After remaining in the hospital for about five months, Bates died as a result of her injuries.

When Simmons spoke with police at the scene on the day of the accident, she denied taking any medications, and police did not obtain a drug test. Simmons also denied the use of any medications when treated at the hospital after the accident. In reality, however, Simmons had taken multiple medications that day and the night before, including Ambien, Xanax, and Zoloft.

2. Procedural history.2

Simmons ultimately pled guilty to vehicular homicide in the second degree and a stop sign violation, and she was sentenced to 12 months’ probation. The plaintiffs filed suit against Simmons for wrongful death and for compensation on behalf of Bates's estate. Prior to trial, the plaintiffs gave notice that they intended to introduce the 2012 DUI, along with pharmacy and medical records, to show Simmons was intoxicated on the day of the accident. Simmons objected to this evidence, noting that she had admitted she breached her duty of care on the day of the accident, and arguing that the plaintiffs could not prove she had taken any medications or that she was impaired on the day of the accident and thus the evidence was more prejudicial than probative under OCGA § 24-4-403 (“Rule 403”). Following a hearing, the trial court excluded the prior acts evidence. The plaintiffs moved for reconsideration, arguing that the evidence was relevant to their punitive damages claim, as well as their bad faith claim under OCGA § 13-6-11. They asserted that Simmons admitted taking the medications, and they argued that her omission to police on the day of the accident showed consciousness of guilt.

The trial court bifurcated the trial and determined that the plaintiffs could ask Simmons about taking Xanax, Zoloft, Ambien, and blood pressure medications during the first phase related to damages.³ But it excluded any mention of the prior DUI during that phase.

(a) Phase 1 of trial: liability and compensatory damages.

During jury selection, the plaintiffs urged the trial court to reconsider admitting the prior DUI, but the trial court declined to do so, finding that any mention of the DUI would be overly prejudicial under Rule 403.

In opening statements, the plaintiffs argued that this was a DUI case and that Simmons knew the danger of driving while taking prescription medication. The plaintiffs then presented Simmons's cross-examination testimony by previously recorded deposition. In her testimony, Simmons admitted to speeding on the day of the accident and to taking Xanax, Zoloft, and Ambien, along with her blood pressure medications, but she was ambivalent about whether she ran the stop sign that led to the accident. She further acknowledged that she was aware of the side effects of her medications and that it could be dangerous to drive while taking them. Simmons conceded that she did not tell the police or the hospital that she was taking prescribed medications on the day of the accident. She then denied having any other traffic citations, at which time the plaintiffs submitted her three previous speeding tickets. As the trial continued, the plaintiffs again raised the issue of admitting the prior DUI for impeachment and credibility purposes. The trial court reiterated its prior ruling and declined to admit the DUI during the first phase of trial.

Despite the trial court's ruling, counsel repeatedly questioned Simmons on collateral matters to create an opportunity to impeach her with the prior DUI. During Simmons's in-person testimony, she explained that she was a retired nurse and had been taking medications for anxiety and depression since she was a teenager. She stated that she was not experiencing any side effects from those medications. Counsel continued to question Simmons about her history of taking Ambien in an attempt to elicit inconsistencies to impeach her with the prior DUI. Although the trial court repeatedly warned counsel against any mention of the 2012 conviction, it ultimately admitted the prior DUI for impeachment after Simmons gave inconsistent answers regarding how many years she had been taking Ambien. Simmons then admitted that she had pled guilty to the 2012 DUI.

During closing arguments, the plaintiffs’ counsel repeatedly referred to the prior DUI, and then made the following argument:

The easiest way to look at this is, is, if you're the hiring committee. You've got to hire Deborah Bates. ․ And I've got to say in the job app., hey, you're going to get horribly injured. That you're going to go through the most horrifying pain possible. You're going to get $3 million worth of bills. You're going to lose the ability to speak to your family as you're dying. Deborah Bates, this is the job that is being offered. And you as that hiring committee, have to go back there and honestly do this job as appraisers. What proposal do you have to send Deborah Bates where she says –

At this point, Simmons objected, arguing that the statement was a violation of the “Golden Rule” by asking the jury to put themselves in Bates's shoes. The trial court noted the objection for the record, but did not preclude counsel from making this argument. As he continued with closing argument, counsel advised the jury

your [sic] hiring people, you're sitting as a hiring committee. You're sitting around the table and you're deciding, okay, we've got a candidate ․ we want to hire, it's Deborah Bates. What do we have to present to her? And you've got to come up with for real, what would she take? What would she take? What is the real number? And the real number is not a number that exists.

․

We'll give you billion dollars, ten billion dollars, a hundred billion dollars. What does it take for her to do it? What does it honestly take? And honestly there isn't a number. Which means at some point you're going to have to put down a number that is a number out of respect, because you can't put all of it.

In rebuttal closing, counsel repeated the “hiring committee” argument:

The measure of damages, the only one who matters, the only one who matters, is Deborah Bates. And if you're that hiring committee, and you have that letter in front of her, and you say you've got to sign this she's – what would it take to get her to sign it? And nothing would. You've got to give a number that respects that.

During deliberations, the jury asked several questions about the 2012 DUI and whether they could award punitive damages if they found Simmons was not intoxicated. Ultimately, the jury returned a verdict in the plaintiffs’ favor, and awarded damages in the amount of $18 million to the estate; over $3 million for medical and funeral expenses; and $25 million for wrongful death. The verdict form also asked the jury whether Simmons acted in bad faith, caused unnecessary trouble and expense, or was stubbornly litigious for purposes of awarding attorney fees, and the jury responded yes. The jury further indicated that it did not find that Simmons's driving was unlawful because she was intoxicated. Finally, the jury agreed that punitive damages were warranted.⁴

(b) Phase 2 of trial: punitive damages and attorney fees.

The trial court then proceeded to the second phase of trial to address punitive damages and attorney fees, and it concluded that the prior DUI would be admissible in its entirety for this phase.⁵

During phase two, the plaintiffs argued that Simmons had not changed her dangerous behavior despite the prior DUI, but that she had learned to deny that she had taken medications to avoid any drug testing. Counsel then presented Simmons's deposition admitting she had pled guilty to DUI in 2012. She further acknowledged that, in addition to the Zoloft, Xanax, and Ambien, she was prescribed muscle relaxers, pain medications, and an anti-psychotic. She testified that she was familiar with the side effects and knew that it could be dangerous to drive while taking these medicines, and she admitted that she knew a urine test could be positive for drugs. Simmons further stated that she continued to take the medications, and she continued to drive while taking them. But, she remained ambivalent about her role in the accident that caused Bates's death, telling the jury, “I was just driving along. That's the only thing I know. ․ I didn't mean to run a stop sign. If I run [sic] the stop sign.”

The plaintiffs’ counsel then testified to his fees, explaining that the plaintiffs signed a contingency fee agreement for 40 percent, which was usual and customary in this type of complex case.⁶ He stated that he and the entire firm spent thousands of hours working this case, and he made “an absolute guess” that they worked “maybe about four thousand hours.” He opined that these hours and the contingency fee rate were reasonable. At the conclusion of phase two, the jury awarded punitive damages of $1 million, finding that Simmons acted under the influence of medications to such a degree that her judgment was impaired. As to fees, the jury awarded $30 million.

Simmons filed a motion for new trial, raising the same arguments as those she raises on appeal. Following a hearing, the trial court denied the motion. Simmons now appeals.

4. The appeal.

On appeal, Simmons challenges (a) the admission of the prior DUI to impeach her testimony; (b) counsel's “Golden Rule” closing argument; and (c) the award of attorney fees under OCGA § 13-6-11. We address each in turn.

(a) Prior acts evidence.

Simmons first argues that the prior DUI was inadmissible under OCGA § 24-4-404(b) (“Rule 404(b)”) even for impeachment because it was not relevant to the issues at trial.⁷ She explains that any discrepancy in the length of time she had been taking Ambien was a collateral matter, especially where she admitted negligence in causing the accident and that she was taking it at the time. She notes that it is also improper to elicit testimony designed to create an impeachment opportunity in order to admit evidence previously excluded, and that, in doing so, the plaintiffs’ counsel repeatedly ignored the trial court's rulings that the evidence was inadmissible. Finally, she argues that the admission of the prior DUI was not harmless, as it became the crux of the plaintiffs’ case. After a thorough review of the record, we conclude the admission of this evidence was harmless.

“We review a trial court's decision to admit or exclude evidence for an abuse of discretion.” Wright v. Metro Ambulance Servs., Inc., 377 Ga. App. 516, 521(1), 923 S.E.2d 89 (2025). But, even if evidence is improperly admitted, reversal is not warranted if the error was harmless.⁸ See OCGA § 24-1-103 (a).

[T]o be reversible error, it is not enough that the trial court erred; the plaintiffs also must show that the error had an effect on the outcome of the proceedings. Erroneous evidentiary rulings are subject to the harmless error doctrine, meaning we may not reverse a judgment because of such an error unless refusal to take such action appears to the court inconsistent with substantial justice. When we consider whether an error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so.

Ross-Stubblefield v. Weakland, 359 Ga. App. 523, 527, 859 S.E.2d 502 (2021) (citation modified). See also Haskins v. Ga. Neurosurgical Institute, P.C., 355 Ga. App. 781, 783(2), 845 S.E.2d 770 (2020); Hillman v. ALDI, Inc., 349 Ga. App. 432, 441(1)(b), 825 S.E.2d 870 (2019); OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]”); OCGA § 9-11-61 (“No error in either the admission or the exclusion of evidence ․ is ground for granting a new trial or for setting aside a verdict ․, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).

Here, we cannot say it was likely that the evidence contributed to the verdict or that Simmons's substantial rights were affected by the admission of this evidence. OCGA § 9-11-61. Simmons admitted taking the medications at the time of the accident and that she was aware of the potential side effects. The jury also heard that she continued to drive after the accident that injured Bates while taking the same medications. And, the jury was also able to evaluate Simmons's credibility and any inconsistencies in her testimony, including her continued ambivalence about running the stop sign that caused the accident, and her omission of drug use when speaking to police. Viewing this evidence as reasonable jurors would, it is unlikely that the prior acts evidence contributed to the jury's conclusion that Simmons was liable for the accident and that punitive damages were warranted. See OCGA § 51-12-5.1(b); Ross-Stubblefield, 359 Ga. App. at 527, 859 S.E.2d 502. Nor did the admission of this evidence affect Simmons's substantial rights during the first phase of the trial. Compare Taylor v. RaceTrac Petroleum, 238 Ga. App. 761, 763(1), 519 S.E.2d 282 (1999) (admission of evidence of prior speeding and drug use was harmful where the trial court's limiting instruction was unlikely to have limited jury's consideration of that evidence).

(b) Whether plaintiffs’ closing argument violated the “Golden Rule.”

Simmons next argues that the trial court erred by permitting the plaintiffs’ counsel to violate the “Golden Rule” during closing argument, in which counsel implicitly encouraged the jurors to place themselves in the shoes of the victim, and likely increased the amount of damages awarded. We again conclude that any error in the closing argument is harmless.

The so-called “Golden Rule” argument 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. It is improper because it asks the jurors to consider the case, not objectively as fair and impartial jurors, but rather from the biased, subjective standpoint of a litigant.

Myrick v. Stephanos, 220 Ga. App. 520, 522(4), 472 S.E.2d 431 (1996) (citation modified). This rule applies regardless of the nomenclature counsel uses. Parham v. State, 355 Ga. App. 720, 727(3)(a)(i), 845 S.E.2d 689 (2020).

Here, the trial court granted a pre-trial motion in limine to exclude any “Golden Rule” argument, and Simmons raised a timely objection to counsel's closing remarks. Nevertheless, the plaintiffs’ counsel argued repeatedly during closing that the jury was a “hiring committee” who had to decide what pay a job applicant would be willing to accept in order to suffer Deborah Bates's injuries.⁹

Pretermitting whether the comments were improper, any error was harmless. Cf. Moore v. State, 280 Ga. App. 894, 896-97(3), 635 S.E.2d 253 (2006) (no reversible error where improper argument did not affect the outcome given the overwhelming evidence of guilt). The trial court instructed the jury that it was to determine the amount of damages for pain and suffering, and it gave a list of factors to be considered. With respect to the wrongful death claim, the trial court instructed the jury that

[d]amages in a wrongful death action are assessed from the deceased's standpoint, not from the Defendant's standpoint, the Plaintiffs’ standpoint, or the standpoint of the next of kin. Accordingly, the true value for the measure of wrongful death damages is the value of the life of Deborah Bates to herself[.]

We presume the jury followed the trial court's instructions. City of Lawrenceville v. Alford, 366 Ga. App. 226, 228(1), 881 S.E.2d 474 (2022). And, given the evidence of Bates's extensive injuries and Simmons's admission that she was using several different medications with significant side effects while driving, we conclude that it is unlikely the comments in closing argument affected the jury's verdict. Moore, 280 Ga. App. at 896-97(3), 635 S.E.2d 253.

(c) Attorney fees under OCGA § 13-6-11.

Finally, Simmons argues that the attorney fee award under OCGA § 13-6-11 must be reversed or remitted because there was no evidence to support the amount, which was excessive. We agree that the evidence of the amount of fees was insufficient.

Under OCGA § 13-6-11, a plaintiff may obtain an award of attorney fees where a “defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”

In determining the amount of an award of attorney fees [pursuant to OCGA § 13-6-11], a court may consider a contingent fee agreement, but when a party seeks fees based on a contingent fee agreement, the party must show that the contingency fee percentage was a usual or customary fee for such case and that the contingency fee was a valid indicator of the value of the professional services rendered. In addition, the party seeking fees must also introduce evidence of hours, rates, or some other indication of the value of the professional services actually rendered.

Taylor v. Devereux Found., 316 Ga. 44, 91(VIII), 885 S.E.2d 671 (2023) (citation modified).

Here, the plaintiffs’ counsel testified that there was a contingency fee agreement, and that 40 percent was usual and customary in this type of complex case. He stated that he and the entire firm spent thousands of hours working on this case, but provided no evidence to support this estimate, and failed to delineate between the work performed by lawyers and that of support staff. He explained that, in the weeks leading up to trial, four full time attorneys worked non-stop on the case. Counsel further stated that his hourly rate, should the contingency agreement terminate, was $1,900 an hour. He opined that the hours and contingency fee rate were reasonable.

We find this evidence insufficient to support the fee award. See Wimpy v. Martin, 356 Ga. App. 55, 59-60(3)(a), 846 S.E.2d 230 (2020) (testimony that 30 percent contingency fee amount was reasonable without other evidence was insufficient). Notably, counsel did not proffer the hourly rate for anyone other than himself, despite indicating that others were involved. And there was no additional evidence — aside from the contingency fee agreement — to support the award of fees. Compare Taylor, 316 Ga. at 92-93(VIII)(A), 94(VIII)(B), 885 S.E.2d 671 (numerous affidavits, summary of work done on the case, and copy of fee arrangement was sufficient to establish amount of fees); Ga. Dep't of Corr. v. Couch, 295 Ga. 469, 483-84(3)(a), 759 S.E.2d 804 (2014) (although there were affidavits and testimonial evidence of the number of hours worked and billing rates of attorneys involved, remand was required where trial court relied only on contingency agreement to award fees). Without more, we must vacate the fee award.

Simmons also argues that the amount awarded was unreasonable and that the contingency fee was inadmissible evidence under OCGA § 9-15-16(b). Neither argument affects our conclusion in this case.¹⁰

As to the reasonableness of the amount of fees, we have traditionally considered whether fees awarded under OCGA § 13-6-11 were reasonable even though no such “reasonableness” language appears in the statute.¹¹ Compare OCGA § 13-6-11, with OCGA § 9-11-68(b)(1) (providing for award of reasonable fees). See, e.g. Alexander v. Francis, 369 Ga. App. 580, 594-95(3)(b), 894 S.E.2d 161 (2023); Hagan v. Keyes, 329 Ga. App. 178, 181-82(4), 764 S.E.2d 423 (2014). Because we conclude we must vacate the fees and remand for further proceedings, we need not reach the reasonableness issues at this stage. But, we are mindful that our Supreme Court recently noted the difference in the various statutory provisions for attorney fees and expressly declined to address whether OCGA § 13-6-11 contains a reasonableness requirement. Taylor, 316 Ga. at 91(VIII), 115, 885 S.E.2d 671 (Ellington, J., concurring in judgment only) (“the majority opinion does not hold that, despite its plain language, OCGA § 13-6-11 authorizes only reasonable attorney fees.”).

Accordingly, for the foregoing reasons, we affirm the denial of the motion for new trial, vacate the fee award, and remand the case for further proceedings consistent with this opinion.

Judgment affirmed in part; vacated in part, and case remanded.

FOOTNOTES

1.   Bates's husband was the original plaintiff, but Bates's children were substituted after the husband died.

3.   Ultimately, the trial court trifurcated the trial. The first phase addressed damages for the claims by the estate and for wrongful death; the second phase encompassed punitive damages and attorney fees under OCGA § 13-6-11; and the third phase considered a claim for attorney fees under OCGA § 9-11-68(e). The jury declined to award fees in that third phase.

4.   Under OCGA § 51-12-5.1(b), punitive damages are warranted where there is “clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” As we have explained, “[a] conscious indifference to consequences relates to an intentional disregard of the rights of another. Wilful and intentional misconduct is not essential.” Ramey v. Kimsey, 378 Ga. App. 153, 155–56, 924 S.E.2d 779 (2025).

5.   Although Simmons objected to the admission of this evidence during phase 2, she has not raised that challenge on appeal, and we do not address the admissibility of the evidence in that phase.

6.   Counsel testified to the total amount of litigation expenses, which the jury awarded, and Simmons does not dispute on appeal.

7.   Simmons preserved this issue for appeal by raising contemporaneous objections to the admission of this evidence at trial. See Kennison v. Mayfield, 359 Ga. App. 52, 60(1)(a), 856 S.E.2d 738 (2021).

8.   We do not condone counsel's repeated attempts to impeach Simmons with irrelevant and collateral matters, in direct violation of the trial court's ruling that such evidence was inadmissible in phase 1 of the trial. Counsel was certainly able to point out inconsistencies in Simmons's testimony to enable the jury to weigh her credibility without resorting to evidence it knew was inadmissible. Moreover, even if Simmons's intoxication was “the key issue,” it was relevant only to the extent that Simmons was intoxicated at the time of the accident. Whether she had taken medications longer than she admitted was irrelevant. See Zweigel v. N. Atlanta Obstetrics & Gynecology, 374 Ga. App. 579, 582(1), 913 S.E.2d 719 (2025) (“A party may not use extrinsic evidence to impeach a witness by contradiction on a matter collateral to the material issues at trial.”); Hand v. S. Ga. Urology Ctr., 332 Ga. App. 148, 157(3), 769 S.E.2d 814 (2015), disapproved on other grounds by Phillips v. Harmon, 297 Ga. 386, 398(II), n.10, 774 S.E.2d 596 (2015) (“a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter.”) (quotation marks omitted). See also State v. Rocco, 259 Ga. 463, 466(1), 384 S.E.2d 183 (1989) (“[a] party may not question a witness concerning inadmissible matter and then elicit testimony thereafter to be impeached with evidence inadmissible in the case-in-chief.”); Warren v. Ballard, 266 Ga. 408, 412(2), 467 S.E.2d 891 (1996) (“[I]mpeachment by evidence of collateral sources is only allowed if the false testimony is related to a material issue in the case.”).

9.   Although the plaintiffs contend this type of closing argument has been used for a century, they point to no case law in support. Indeed, we have not had many occasions to consider closing arguments using want-ad or job applicant analogies. Most recently, in Harvey v. Williams, 354 Ga. App. 766, 771(1)(b), 841 S.E.2d 386 (2020), overruled on other grounds by Williams v. Harvey, 311 Ga. 439, 453(2), 858 S.E.2d 479 (2021), we found that a closing argument came “dangerously close to invoking the ‘[G]olden [R]ule’ ” where it urged the jury to determine how much a person would have to be paid to take a job that would cause the type of injuries the victim suffered. But there was no contemporaneous objection in Harvey, and because we found the statement ambiguous, we declined to view it in the most negative way. Id. Instead, we advised, the “better practice would be to avoid any argument that could be construed as asking jurors to put themselves in the shoes of one of the parties.” Id. Compare Ledford v. State, 289 Ga. 70, 86(17), 709 S.E.2d 239 (2011), disapproved on other grounds by Willis v. State, 304 Ga. 686, 706(11)(a), n.3, 820 S.E.2d 640 (2018) (closing argument “urging the jury to think about the unpleasant way in which the victim had died” was not improper Golden Rule argument). Considering the comments here in the context of the entire closing argument, Snipes v. State, 309 Ga. 785, 796(3)(d), 848 S.E.2d 417 (2020), we find it a close call, and we again remind counsel, as our earlier panel did, to avoid any argument that could potentially be construed as violating the Golden Rule.

10.   The parties dispute whether the trial court can consider the contingency fee agreement as evidence under OCGA § 9-15-16(b) (2025). That statute, which went into effect in April 2025, provides that “[i]n any civil action, if a party seeks to recover attorney's fees pursuant to any statute authorizing an award of reasonable attorney's fees, a contingent fee agreement ․ shall not be admissible as proof of the reasonableness of the fees.” OCGA § 9-15-16 (2025). We need not reach the issue of whether OCGA § 9-15-16(b) applies to fee awards under § 13-6-11 or whether that statute is retroactively applicable because, regardless of whether the contingency fee agreement was admissible, there was insufficient evidence to support the fee award for the reasons discussed herein.

11.   Generally when we interpret a statute, we begin with the plain language. “When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.” Deal v. Coleman, 294 Ga. 170, 172-73(1)(a), 751 S.E.2d 337 (2013) (citation modified).

Markle, Judge.

Barnes, P. J., and Hodges, J., concur.