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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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