Opposition Brief — Pogue v. Oglethorpe Power Corp.

Grpeme Court, Ie

- FILEQD

D OCT 19 2000

No. 00-423 ume |

IN THE -

Supreme Court of the United States

DAVID KEITH POGUE and DENISE POGUE,

Petitioners,

Vv.

OGLETHORPE POWER CORPORATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

Ws. MorGan AKIN

Counsel of Record

S. Lester TATE, III

AKIN & Tate, P.C.

Attorneys for Respondent

P.O. Box 878

Cartersville, GA 30120

(770) 382-0780

162983 @) Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the Court of Appeals for the Eleventh Circuit

erred in holding that the District Court did not abuse its

discretion by allowing expert testimony on Respondent’s

affirmative defense of contributory negligence where the

expert’s testimony was based on a reliable foundation, was

relevant, and the court performed the required gatekeeping

function?

2. Whether the Court of Appeals for the Eleventh Circuit

erred in holding that the District Court did not abuse its

discretion by refusing to admit evidence of a wrap-up

insurance policy?

i

CORPORATE DISCLOSURE STATEMENT

Oglethorpe Power Corporation is a non-profit

corporation which is equally owned by thirty-nine

cooperatives, There is no parent and no publicly held

company owns 10% or more of the stock of the Respondent.

iii

TABLE OF CONTENTS

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Corporate Disclosure Statement ................

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Reasons for Denying the Writ .................

I.

The Record And The Decision Below Clearly

Show That The Expert’s Testimony Was

Based On A Reliable Foundation And Was

Relevant, The Court Performed The Required

Gatekeeping Function, And The Eleventh

Circuit Did Not Err In Affirming The District

I evs weit eee Caw waae ess

A. The Expert’s Testimony Was Relevant

And Based On A Reliable Foundation.

B. The District Court Performed Its

Gatekeeping Function. ............ .

C. The Eleventh Circuit Court Of Appeals

Did Not Err In ein taatita The District

ROE IS ne kk kas be Cont a

Page

iv

Contents

Page

Il. The Petition For Writ Of Certiorari Should

Be Denied, Because The Eleventh Circuit Did

Not Err In Affirming The District Court’s

Ruling Refusing To Admit Evidence Of A

Wrap-up Insurance Policy, And The

Unpublished Opinion Of The Eleventh

Circuit Does Not Deny Petitioners The

Benefit Of The Rule Of Law, Because The

Court’s Ruling Was Based Upon Sound Law

And Does Not Attempt To Avoid

re een 7

A. The Eleventh Circuit did not err in

affirming the trial court’s ruling refusing

to admit evidence of a wrap-up insurance

ON. ccs ak R ARR Cee 7

B. The unpublished opinion of the Eleventh

Circuit does not deny Petitioners the

benefit of the rule of law, because the

court’s ruling was based upon sound law

and does not attempt to avoid

precedential effect. ...........0005: 9

CIES fore as Sos ee ee age da a 11

TABLE OF CITED AUTHORITIES

Page

Cases:

Anastasoff v. United States of America,

No. 99-3917EM, (August 22, 2000), 2000 U.S.

Aapp., LIERIG 20078 «606s Hessen aii 9,10

Ballou v. Henry Studios, 656 F.2d 1147 (5 Cir.

BOOED scan cccnes<ddenesn sea einl cae 2

Carmichael v. Samyang, 131 F.3d 1433 (11™ Cir.

SUID: ont ccaww aye eeeks coup obese 6

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. $79, 113 S. Ct. 2786 (1993) ..... 2, 3, 4, 5, 6, 11

General Electric v. Joiner, 522 U.S. 136, 139

L. Bd, 26 SUG, 2168S. CR. SIS CERT) we secs 6

Kumho Tire Company, Ltd., et al. v. Carmichael,

etc. et al., 526 U.S. 137, 119 S. Ct. 1167 (1998)

Pere re Pr Ts Epes eee) es ree 3,11

Rules:

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a, Be Bs SE 8x 5 cho seek Saban ea mekeees 5

, §s. & : eeerrrrreg nr cre rr eer 2, 8, 9, 10

Se Ry errr ere errr ge rine 8,9

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|

STATEMENT OF THE CASE

Respondent Oglethorpe Power Corporation accepts the

facts as outlined by Petitioners, with the following additions:

Prior to the commencement of trial, the parties engaged

in rigorous written and oral argument before the court on

the issues of admissibility of Petitioner David Pogue’s drug

screen results and the introduction of the wrap-up insurance

policy. Tr. at 30-37. After consideration of the arguments

presented, the Court allowed evidence of David Pogue’s

impairment on the issue of contributory negligence and

excluded the admission of the wrap-up insurance policy.

Tr. at 30-37, 867, 902-903. The United States Court of

Appeals for the Eleventh Circuit found that the district

court did not abuse its discretion by refusing to admit the

wrap-up insurance policy into evidence and did not abuse

its discretion in admitting the positive drug screen results.

Pet., App. A at 9a.

The issues presented to the Eleventh Circuit and those

before this Honorable Court both involve an abuse of

discretion standard. Petitioners have repeatedly ignored this

liberal standard. Instead, Petitioners misstate the facts,

expressing that neither the Eleventh Circuit nor the District

Court made any inquiry whatsoever as to the drug screen

results and the insurance policy. The Eleventh Circuit’s

ruling was proper in all respects. Respondent respectfully

requests this Honorable Court to deny the Petition for Writ

of Certiorari.

2

REASONS FOR DENYING THE WRIT

I. THE RECORD AND THE DECISION BELOW

CLEARLY SHOW THAT THE EXPERT’S

TESTIMONY WAS BASED ON A RELIABLE

FOUNDATION AND WAS RELEVANT, THE

COURT PERFORMED THE REQUIRED

GATEKEEPING FUNCTION, AND THE

ELEVENTH CIRCUIT DID NOT ERR IN

AFFIRMING THE DISTRICT COURT’S RULING.

The decision whether to admit evidence of consumption

or use of potentially intoxicating drugs and beverages is a

matter which is dedicated to the sound discretion of the trial

court. Fed. R. Evid. 403, 702, 104; Ballou v. Henry Studios,

656 F.2d 1147 (5" Cir. 1981). The same is true of any review

of the court’s decision under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).

The Petitioners did not demonstrate to the Eleventh Circuit

that the district judge abused his discretion in admitting this

evidence.

The Eleventh Circuit thoroughly explained the relevance

and admissibility of Mr. Pogue’s positive drug screen results.

The Eleventh Circuit stated that

[e]vidence of impairment — the drug screen

results — is relevant where contributory

negligence is one of the ultimate questions before

the jury. While the results did not require the jury

to find that Pogue was impaired at the time of his

fall, the positive drug screen was some evidence

from which the jury would have been entitled to

infer that he was. Additionally, the [Petitioners]

were entitled to cross-examine and establish, as

they did, that there are many reasons not to draw

3

such an inference. The issue is then left to the

judgment of the jury on the facts of this case. That

is how we do it, and that is how it was done in

this case.

Pet., App. A at 6a-7a (emphasis original).

Daubert provides a two part test for determining whether

to admit expert testimony. 509 U.S. at 580. First, the trial

judge must ensure that the expert’s testimony rests on a

reliable foundation. Jd. Second, the trial judge must ensure

that the expert’s testimony is relevant. Jd. This Court

explained that the first inquiry is flexible and that its focus

should not be “on the conclusions that they generate.” /d.

Further, “cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof,

rather than wholesale exclusion . . . is the appropriate means

by which evidence based on valid principles may be

challenged.” /d.

Next, the expert’s testimony must be relevant. /d.

The testimony regarding the drug screen results assisted

the jury both in understanding the evidence and in

determining a fact in issue. The Eleventh Circuit clearly

explained the relevance of the results from the drug screen

in chis case and the method of dealing with such evidence.

Pet., App. A at 6a-7a.

In Kumho Tire Company, Ltd., et al. v. Carmichael, etc.

et al., this Court further explained the necessary inquiries

where expert testimony is involved. 526 U.S. 137, 119

S. Ct. 1167 (1998). In Kumho, this Court stated that under

Daubert, the Rule 702 inquiry is flexible and the Daubert

factors are not conclusive. 526 U.S. 137, 138. Moreover,

4

“whether Daubert’'s specific factors are, or are not,

reasonable measures of reliability in a particular case is a

matter that the law grants the trial judge broad latitude.”

Id. at 139. An expert’s testimony is given “latitude

unavailable to other witnesses on the assumption that the

expert’s opinion will have a reliable basis in the knowledge

and experience of his discipline.” /d. at 138. Finally, as was

done by the Eleventh Circuit in this case, an abuse

of discretion standard is applied on the review of a trial

court’s determination of whether to admit expert testimony.

Id. at 138-139. -

A. The expert’s testimony was relevant and based on a

reliable foundation.

Petitioner David Pogue tested positive for marijuana in

a drug screen performed at Floyd Medical Center where he

was taken immediately after he fell through the opening in

the floor. The drug screen showed that Pogue had at least

25 nanograms per milliliter of THC in his body at the time

of the test. Tr. at 911. THC is the active ingredient

in marijuana. Tr. at 944. Respondent alleged contributory

negligence as an affirmative defense. Tr. at 19-21. Petitioners

defended by alleging that Petitioner David Pogue

tested positive for THC due to “passive inhalation.”

Tr. at 411-412.

Respondent offered expert testimony from Dr. Horton

McCurdy, a forensic pathologist with the Georgia State

Crime Lab. Tr. at 939. Dr. McCurdy was retained

by Respondent through his private consulting firm,

Toxicology Consultants, Incorporated. Tr. at 939.

Dr. McCurdy testified that the level of THC Mr. Pogue tested

positive for is not consistent with “passive inhalation.”

Tr. at 945-947. Further, Dr. McCurdy explained that to reach

5

that level of THC by passive smoke alone, the following

conditions would have to be satisfied: Mr. Pogue must have

spent at least one hour in an automobile with two marijuana

smokers, each constantly smoking a marijuana cigarette, with

the windows shut and no air conditioning could be in use.

Tr. at 946-947. Moreover, the sample must have been

collected within six hours of exposure. Tr. at 947. If these

severe conditions were met, Dr. McCurdy testified that only

one in twenty-four persons would test positive for THC.

Tr. at 946. Dr. McCurdy testified that his testimony was

based not only on his personal experience as a forensic

toxicologist for more than twenty five years, but also on

scientific studies which have been reported in scientific

literature. Tr. at 939, 946-948.

Accordingly, Dr. McCurdy’s testimony regarding the

drug screen was based on a reliable foundation and the

positive test was relevant to the issue of contributory

negligence and Mr. Pogue’s drug use on the day of his fall.

B. The District Court performed its gatekeeping

function. ;

The Petitioners argue that the district court abdicated

its gatekeeper responsibilities under Daubert by allegedly

refusing to hold a hearing. It is clear, however, that the court

did in fact hold a hearing on July 15, 1998, on the Petitioners’

motion and made a preliminary determination on the basis

of Federal Rule of Evidence 104(a). Tr. at 30-38. It is unclear

whether Petitioners believe that this should have been a full

evidentiary hearing or are otherwise dissatisfied. It is

irrelevant whether their contention is that an evidentiary

hearing should have been held, because Federal Rule of

Evidence 104(a) does not require an evidentiary hearing.

6

In fact, the rule specifically states that the court’s

“determination is not bound by the rules of evidence except

those with respect to privileges.” Accordingly, the trial court

did not abdicate its responsibility as insisted by the

Petitioners.

C. The Eleventh Circuit Court of Appeals did not err in

affirming the district court’s ruling.

The essence of Petitioners’ argument before this

Honorable Court is that the evidence should have been

excluded under Daubert; however, Petitioners cannot show

that the trial judge’s decision was an abuse of discretion.

The Eleventh Circuit has held that while decisions whether

to apply Daubert are de novo, a court’s “decision to exclude

particular evidence under Daubert [will be reviewed only]

for abuse of discretion.” Carmichael v. Samyang, 131 F.3d

1433 (11" Cir. 1997), (citing General Electric v. Joiner, 522

U.S. 136, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997)).

No abuse of this kind can be shown. Therefore, the Petition

for a Writ of Certiorari should be denied.

7

Il. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED, BECAUSE THE

ELEVENTH CIRCUIT DID NOT ERR IN

AFFIRMING THE DISTRICT COURT’S RULING

REFUSING TO ADMIT EVIDENCE OF A WRAP-

UP INSURANCE POLICY, AND THE

UNPUBLISHED OPINION OF THE ELEVENTH

CIRCUIT DOES NOT DENY PETITIONERS THE

BENEFIT OF THE RULE OF LAW, BECAUSE

THE COURT’S RULING WAS BASED UPON

SOUND LAW AND DOES NOT ATTEMPT TO

AVOID PRECEDENTIAL EFFECT.

A. The Eleventh Circuit did not err in affirming the

trial court’s ruling refusing to admit evidence of a

wrap-up insurance policy.

The trial court’s determination to exclude the wrap-up

insurance policy was within its sound discretion.

The Eleventh Circuit did not err in affirming the trial court’s

decision. Further, the trial court did not exclude this evidence

solely because it was an insurance policy. The trial court

made this fact perfectly clear the last time the documents

were tendered:

... Pll reiterate what I said the other day. Those

two documents ya’ll showed me that I would not

let in evidence, I’ve seen nothing that makes them

admissible. They’re not admissible just because

there’s some fellow’s written a book about wrap-

up policies. It’s rank hearsay insofar as

admissibility’s concerned.

Tr. at 867.

8

Evidence of this wrap-up insurance policy was also

inadmissible under Federal Rule of Evidence 411, which

states that “evidence that a person was or was not insured

against liability is not admissible upon the issue of whether

the person acted negligently or otherwise wrongfully.”

Such evidence is admissible only where it is “offered for

another purpose, such as proof of agency, ownership or

control or bias or prejudice of a witness.” Fed. R. Evid. 411.

As the Eleventh Circuit explained, “[t}he district court

excluded this evidence because it did not prove any matter

of consequence in the action because Oglethorpe did not deny

that it exercised control over the site.” Pet., App. A at 3a.

When this evidence is offered for some other purpose, it may

be admitted only after a Federal Rule of Evidence 403

balancing process. The trial court conducted such a balancing

test and thoroughly explained its reasons. Tr. at 30-37,

736, 867. It did so both when initially denying the Petitioners’

motion in limine regarding the wrap-up policy and during

the course of the trial when the request was renewed.

Pet., App. B at 10a-11a; Tr. at 736, 867.

The Eleventh Circuit stated that it was entirely

admissible for Petitioners to introduce facts which

showed that Respondent “did things to guarantee safety

or assumed responsioility for guaranteeing safety at the

site.... Indeed, the [Petitioners] introduced substantial

evidence on the issue of control, including that [Respondent]

hired safety inspectors and that these inspectors direct

contractors to do things to conform to [Respondent’s] safety

requirements.” Pet., App. A at 5a. Moreover, the Eleventh

Circuit explained that

introduction of the wrap-up policy was not

essential, if helpful at all, to proving that

9

[Respondent] undertook, if indeed it did, to

guarantee safety at the construction site....

[W]e agree with the district judge that the

introduction of the wrap-up policy would have

“put [ ] insurance all over this case,” and “the

prejudicial effect far outweighs its relevance.”

Pet., App. A at Sa-6a.

The trial court followed the mandates of Federal Rules

of Evidence 411 and 403 and appropriately engaged in a

balancing test. The decision of the trial court was not an

abuse of discretion. Accordingly, Respondent_respectfully

requests that the Petition for Writ of Certiorari be denied.

B. The unpublished opinion of the Eleventh Circuit does

not deny Petitioners the benefit of the rule of law,

because the court’s ruling was based upon sound law

and does not attempt to avoid precedential effect.

The unpublished opinion did not deny Petitioners the

benefit of the rule of law, because the court’s rule in this

case was based upon sound law and did not attempt to avoid

precedential effect. Petitioners attempt to persuade this Court

that the Eleventh Circuit did not publish its opinion, because

it did not want to “acknowledg[e] the error of its ruling” and

avoid the precedential effect of its ruling. Pet. at 16.

Petitioners’ accusation is without merit.

Petitioners’ entire appeal seeks review based upon the

common abuse of discretion standard. Petitioners support

their zealous argument on the importance of precedential

rulings by citing solely to Anastasoff v. United States of

America, which, interestingly, as an Eighth Circuit case has

10

only persuasive and not precedential value to the Eleventh

Circuit. No. 99-3917EM, (August 22, 2000), 2000 U.S. App.,

LEXIS 21179. Nevertheless, Respondents do not maintain

that Anastasoff is an erroneous holding, but that it simply is

inapplicable to the facts of this case.

The wrap-up insurance policy was not admitted, as both

the trial court and the Eleventh Circuit thoroughly explained,

for several reasons. First, Petitioners claim that the wrap-up

policy was essential to prove Respondent’s motive to control

safety on the job site. Pet. at 11-13. However, the Eleventh

Circuit explained that “[Respondent] did not deny that it

exercised control over the site.” Pet., App. A at 3a.

Ergo, the wrap-up policy was not essential to Petitioners’

case. Second, under the Fed. R. Evid. 403 balancing process,

it was held that admitting this insurance policy “ ‘would have

‘put[ ] insurance all over this case,’ and ‘the prejudicial effect

far outweighs its relevance.’” Pet., App. A at 5a-6a.

Accordingly, the insurance policy was not admitted. Finally,

the trial court ruled that the wrap-up insurance policy was

“rank hearsay” and was thus inadmissible. Tr. at 867.

The Eleventh Circuit neither erred in its ruling nor

attempted to avoid an erroneous ruling by ordering the case

be unpublished. The unpublished opinion of the Eleventh

Circuit does not suggest that it is somehow a secret attempt

to hide a bad rule; that implication by Petitioners is meritless.

Petitioners misrepresent the facts of this action and cite to

inapplicable case law to suggest that both the trial court and

the Eleventh Circuit disregarded the rules of evidence and

manufactured an unpublished opinion to avoid

“acknowledging the error of its ruling.” Pet. at 16.

Petitioners’ assertion is clearly incorrect. Consequently, the

Petition for a Writ of Certiorari should be denied.

11

CONCLUSION

The issues presented in this case involve whether the

Eleventh Circuit, in affirming the jury’s verdict, erred in

holding that the district judge did not abuse his discretion in

admitting the results of a positive drug screen and refusing

to admit the wrap-up insurance policy into evidence.

The district court and the Eleventh Circuit Court of Appeals

clearly followed Daubert, Kumho Tire, and the Federal Rules

of Evidence. Evidence of the unpublished opinion is

insignificant to issues before this Court.

For all the foregoing reasons, Respondent respectfully

requests that this Honorable Court deny the Petition.

Respectfully submitted,

Wo. MorGaNn AKIN

Counsel of Record

S. Lester TATE, III

Akin & Tarte, P.C.

Attorneys for Respondent

P.O. Box 878

Cartersville, GA 30120

(770) 382-0780