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Sunday, January 04, 2009

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

On Dec. 21st the ILB had this entry, which included a link to this Dec. 18th order (#1506) in the case of U.S. v. Cinergy, et al. The entry also included a link to the list of recent documents available at the time. #1507 was marked as "sealed."

The document has now been unsealed via this Order to Unseal filed Dec. 22nd, which begins:

On the Court’s own motion, the Court has concluded that there is no good cause to keep plaintiff’s, the United States of America, and plaintiff-intervenors’, the State of New York, the State of New Jersey, the State of Connecticut, the Hoosier Environmental Council, and the Ohio Environmental Council (all plaintiffs, collectively, “Plaintiffs”), Motion for a New Trial Due to Party Misconduct, or, in the Alternative, for Expedited Discovery and an Evidentiary Hearing, related briefing, and the Court’s Order on Plaintiff’s Motion for New Trial under seal.
Here is the Dec. 18th Order (1507), now unsealed.

Mark Wilson of the Evansville Courier & Press has a story today about the Order. Some quotes:

A federal judge has ruled lawyers for Duke Energy misled jurors about one of its witnesses during a trial on whether the utility company broke federal clean air laws at power plants in Indiana and Ohio.

Those plants include the giant 3,145-megawatt power plant in Gibson County, Ind.

Federal Judge Larry Mc-Kinney ruled Duke attorneys mislead jurors by portraying a witness with knowledge of the power plant improvements simply as a former employee. At the same time, according to the judge's ruling, the Duke attorneys portrayed government witnesses as experts who were paid for their testimony.

After the trial it was discovered that Duke had agreed to pay its witness $200 an hour for his testimony, according to the court record.

McKinney ruled knowing that information could have changed the jury's perception of the facts and its decisions.

"The case involved a substantial amount of a retired employee's time, including his travel. So he was paid. It is a routine fee," said Angeline Protogere, a Duke Energy spokeswoman.

The ruling paves the way for a new trial on most of the charges, even though a jury ruled in Duke's favor on them in May. That gives the government and environmentalists who joined the lawsuit a second chance to prove the company violated the Clean Air Act. * * *

A new trial date has not been set. But the utility company's lawyers have been ordered to attend a Jan. 13 hearing in Indianapolis and explain why they should not be suspended from practicing before the United States District Court for the Southern District of Indiana and pay court costs. [ILB emphasis]

Posted by Marcia Oddi on January 4, 2009 09:35 AM
Posted to Environment | Ind Fed D.Ct. Decisions