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Friday, January 09, 2009

Ind. Decisions - More on: New trial ordered by judge in pollution suit against New Albany power plant that jury rejected

In this ILB entry from Jan. 4th, the ILB had obtained and provided a link to a now-unsealed 29-page Dec. 18th Order in the case of U.S. v. Cinergy, et al.

In the Order Judge McKinney granted Plaintiffs' Motion for a New Trial Due to Party Misconduct, or, in the Alternative, for Expedited Discovery and an Evidentiary Hearing. The Order was accompanied by this 5-page Order to Show Cause:

In an order dated December 18, 2008, this Court concluded that defendants, Cinergy Corp., PSI Energy, Inc., and The Cincinnati Gas & Electric Company (“Cinergy”), acting with and through their attorneys, committed misconduct during the liability phase jury trial in this matter. Specifically, the Court concluded that Cinergy and its lawyers committed misconduct when they failed to disclose a consulting agreement (the “Agreement”) Cinergy had entered into with one of its fact witnesses, Robert Batdorf (“Batdorf”); when they allowed Batdorf to testify at trial that he was unemployed and emphasized that misstatement in front of the jury; and when Cinergy relied on the misrepresentation as a theme during the trial.

Pursuant to Southern District of Indiana Local Rule 83.5(f), Southern District of Indiana Rule of Disciplinary Enforcement V, and the inherent authority of the Court, Cinergy and each one of its counsel of record as of May 5, 2008, shall appear before the Court to SHOW CAUSE why Cinergy’s counsel should not be suspended immediately from practice before this Court, and why Cinergy and its counsel should not be ordered to pay for plaintiff’s, the United States of America, and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, Hoosier Environmental Council, and Ohio Environmental Council (collectively, “Plaintiffs”), attorneys’ fees for bringing this matter to the Court’s attention through a Motion for New Trial. Each of Cinergy’s attorneys of record as of May 5, 2008, shall submit on or before Friday, January 9, 2009, a written statement of his or her knowledge of the Agreement including a date upon which such information was made known to him or her. [ILB emphasis]

Said Hearing to SHOW CAUSE is hereby SET for Tuesday, January 13, 2009, at 9:00 a.m., in Courtroom 202, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana.

The Clerk of the Court is directed to serve on all counsel for Cinergy who have withdrawn their appearance between May 5, 2008, and the date of this Order a paper copy of this Order and the above-referenced Order dated December 18, 2008, granting Plaintiffs' Motion for New Trial.

IT IS SO ORDERED this 18th day of December, 2008.

Today this 38-page Response to Order to Show Cause was filed. It begins:
This Court issued an Order to Show Cause requiring (1) counsel representing Cinergy as of May 5, 2008, to give “a written statement of his or her knowledge of the Agreement,” including the date upon which each attorney came to know of the Agreement,1 (2) Cinergy’s counsel to show cause why they should be allowed to continue to practice before this Court, and (3) Cinergy and its counsel to show cause why Cinergy and its counsel should not be ordered to pay certain attorneys’ fees for Plaintiffs and Plaintiff-intervenors (“Plaintiffs”). Cinergy respectfully responds to the Court’s Order, showing cause why Cinergy should not be sanctioned and why its attorneys as of May 5, 2008 should not be suspended from this Court. * * *

The Court therefore afforded Cinergy’s counsel the opportunity to explain by affidavit the extent of their knowledge and the basis for their actions. Those affidavits show, as explained in this Response, that each of Cinergy’s counsel acted reasonably, professionally, and in complete good faith, and none conducted himself or herself in a manner that merits sanctions. * * *

Attached to this response are the affidavits of each of Cinergy’s counsel of record as of May 5, 2008.

A footnote on pp. 4 and 5 lists counsel of record for Cinergy on May 5, 2008, and notes "Debra McVicker Lynch (statement filed separately)."

Here is that separately filed document.

Posted by Marcia Oddi on January 9, 2009 04:15 PM
Posted to Ind Fed D.Ct. Decisions