7th Circuit hears Cinergy appeal

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Indiana Lawyer Rehearing

The 7th Circuit Court of Appeals is considering the appeal involving the 2009 retrial on clean-air rule violations at a coal-fired power plant in southeast Indiana.

On Sept. 20, a federal appellate panel made up of Chief Judge Frank Easterbrook and Judges Richard Posner and Illana Diamond Rovner took up the case of U.S. and Hoosier Environmental Council, et al. v. Cinergy Corp., Nos. 09-3351, 09-3344, and 09-3350. The issues are whether U.S. District Judge Larry McKinney in May 2009 erred in admitting certain expert witness testimony and also whether he erred in instructing the jury on a standard that wasn’t in place at the time of the projects.

The case dating to 1999 involves violations to parts of the Clean Air Act intended to make sure that older power plants that have major upgrades also meet more modern pollution limits with new permitting and emissions controls. In a partial retrial of some claims after the original May 2008 verdict that went mostly in the utility company’s favor, jurors found that Duke – which bought Cinergy in 2006 – violated the law in two of its projects at three power plants but did not violate the law on four other projects.

At issue now on appeal is the standard used in determining whether regulations were enforceable under the federal act and whether some of the expert testimony the court permitted should not have been allowed.

The judges grilled attorneys Peter Keisler for Cinergy and Jason Dunn for the federal government about certain expert opinions and the reliability of their testimony. The judges took the case under advisement after listening to both sides.

Rehearing "Cinergy trial ends with split verdict" IL May 27 - June 9, 2009


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues