# Opposition Brief — Pogue v. Oglethorpe Power Corp.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1584%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1012

## Text

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:
a Bi TE: BG casas beh 5h a os See 2
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

se Se are rrr en Sree eee TST TEE 2,3

|
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1584%3A2. Public record. Not legal advice.