Judge: Duke Energy Misled Jurors About Witness
January 5, 2009
EVANSVILLE, Ind. (The Associated Press) - Lawyers for Duke Energy misled jurors about a witness who testified during a trial over whether the utility broke federal clean air laws at power plants in Indiana and Ohio, a federal judge has ruled.
During last year's trial of a clean air lawsuit, Duke Energy portrayed a witness with knowledge of improvements at its coal-fired power plants simply as a former employee.
At the same time, Duke attorneys portrayed government witnesses as
experts who were paid for their testimony, according to the recent ruling by U.S. District Court Judge Larry McKinney.
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, the Evansville Courier & Press reported Sunday.
In his Dec. 18 ruling, McKinney wrote that knowing that information could have changed the jury's perception of the facts and its decisions. The jury had ruled largely in Duke's favor in May.
"The case involved a substantial amount of a retired employee's time,
including his travel. So he was paid. It is a routine fee," Angeline
Protogere, a Duke Energy spokeswoman, told the Courier & Press.
The ruling paves the way for a new trial on most of the
charges, and it gives the government and environmentalists who joined the lawsuit a
second chance to prove that the company violated the Clean Air Act.
The lawsuit, filed in 1999, charges that Cinergy, now owned by
Charlotte, N.C.-based Duke Energy, made changes at the power plants
without updating pollution controls.
A new trial date has not been set, but Duke Energy'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 federal court in
Indianapolis and pay court costs.
When the lawsuit was filed, it was one of several alleging that
various utilities had not followed part of the Clean Air Act called
New Source Review. Many of those companies settled the lawsuits out of
court.
New Source Review is supposed to ensure that new or changed power
plants and factories do not make air quality worse when they make
additions or changes.
The jury ruled in Duke's favor on 10 of the 14 allegations, but
the utility company lost on four allegations related to its Wabash River
Power Station near Terre Haute, Ind.
"This is important environmentally. The jury verdict last
spring was problematic for us, but it did give us a win on one of the facilities. We
were glad that the jury saw fit to rule for us on the Wabash River
plant in May," said Jonathan Lewis, a Clean Air Task Force attorney.
"These are plants which have significantly contributed to
Indiana's and Ohio's air pollution."
Regardless of the violations alleged in the lawsuit, Protogere
said, Duke has since made large investments to reduce air pollution at its
power plants, not only in Indiana and Ohio but also in Kentucky, North
Carolina and South Carolina.
"A lot of the improvements at issue have already been made at
these plants," she said.
By 2010, Protogere said Duke will have cut nitrogen oxide and sulfur
dioxide pollution 70 percent at its power plants.
Information from: Evansville Courier & Press,
http://www.courierpress.com
EVANSVILLE, Ind. (The Associated Press) - Lawyers for Duke Energy misled jurors about a witness who testified during a trial over whether the utility broke federal clean air laws at power plants in Indiana and Ohio, a federal judge has ruled.
During last year's trial of a clean air lawsuit, Duke Energy portrayed a witness with knowledge of improvements at its coal-fired power plants simply as a former employee.
At the same time, Duke attorneys portrayed government witnesses as
experts who were paid for their testimony, according to the recent ruling by U.S. District Court Judge Larry McKinney.
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, the Evansville Courier & Press reported Sunday.
In his Dec. 18 ruling, McKinney wrote that knowing that information could have changed the jury's perception of the facts and its decisions. The jury had ruled largely in Duke's favor in May.
"The case involved a substantial amount of a retired employee's time,
including his travel. So he was paid. It is a routine fee," Angeline
Protogere, a Duke Energy spokeswoman, told the Courier & Press.
The ruling paves the way for a new trial on most of the
charges, and it gives the government and environmentalists who joined the lawsuit a
second chance to prove that the company violated the Clean Air Act.
The lawsuit, filed in 1999, charges that Cinergy, now owned by
Charlotte, N.C.-based Duke Energy, made changes at the power plants
without updating pollution controls.
A new trial date has not been set, but Duke Energy'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 federal court in
Indianapolis and pay court costs.
When the lawsuit was filed, it was one of several alleging that
various utilities had not followed part of the Clean Air Act called
New Source Review. Many of those companies settled the lawsuits out of
court.
New Source Review is supposed to ensure that new or changed power
plants and factories do not make air quality worse when they make
additions or changes.
The jury ruled in Duke's favor on 10 of the 14 allegations, but
the utility company lost on four allegations related to its Wabash River
Power Station near Terre Haute, Ind.
"This is important environmentally. The jury verdict last
spring was problematic for us, but it did give us a win on one of the facilities. We
were glad that the jury saw fit to rule for us on the Wabash River
plant in May," said Jonathan Lewis, a Clean Air Task Force attorney.
"These are plants which have significantly contributed to
Indiana's and Ohio's air pollution."
Regardless of the violations alleged in the lawsuit, Protogere
said, Duke has since made large investments to reduce air pollution at its
power plants, not only in Indiana and Ohio but also in Kentucky, North
Carolina and South Carolina.
"A lot of the improvements at issue have already been made at
these plants," she said.
By 2010, Protogere said Duke will have cut nitrogen oxide and sulfur
dioxide pollution 70 percent at its power plants.
Information from: Evansville Courier & Press,
http://www.courierpress.com