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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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