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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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