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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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