ILNews

Judge orders new Cinergy trial

Michael W. Hoskins
January 1, 2008
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A federal judge in Indianapolis has ordered a new trial for Cinergy Corp because the energy company now owned by Duke Energy committed misconduct earlier this year and tainted the liability phase of the litigation.

U.S. District Judge Larry McKinney issued a 29-page decision in U.S., et al. v. Cinergy Corp, et al., 1:99-cv-1693, on Thursday, unsealing it and making the ruling public Dec. 22.

"In summary, the Court concludes that Cinergy's misrepresentations about payment of one of its fact witnesses ... amounts to misconduct," Judge McKinney wrote. "Because of such misconduct, the liability trial in this matter was tainted and Plaintiffs' request for a new trial on liability is granted."

This second-phase litigation stems from a two-week federal trial in the spring, the nation's first to go before a jury on the issue of whether slight modifications at coal-fired power plants triggered the need for new pollution control equipment at the facilities.

A jury found the Wabash Power plant in Terre Haute had violated the U.S. Clean Air Act when the company improved the facility but didn't install modern pollution controls, as required by law. The jury found that "a reasonable power plant operator" would not have expected the improvements to cause additional sulfur dioxide pollution and a need for extra controls.

That unanimous decision was part of a larger ruling involving six plants, including two others in Indiana. The company won decisions on 10 of 14 projects at the those plants, and the four it lost involved work at plants in Terre Haute between 1989 and 1992.

In the remedy phase that is central to this court decision, the issue became how Cinergy represented one of its key witnesses during discovery and at trial. One of Cinergy's central defense themes was on the experts from both sides - the plaintiffs' "hired experts" versus the defense "engineer" witnesses, who had differing views on what kind of repair and modernization projects may have been happening at the power plants.

Judge McKinney found that Cinergy didn't disclose that it had a consulting agreement with a witness and misrepresented that person's relationship with the company - whether he was a retired, unpaid former employee or a paid consultant. Plaintiffs argued that it relied on that misrepresentation as a key strategy, and that may have influenced the liability trial.

Ultimately, Judge McKinney wrote that it's difficult to determine the extent of the unfairness in the process.

A bench trial is set for Feb. 2, 2009.
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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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