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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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