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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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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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