UNITED STATES OF AMERICA et al v. CINERGY CORPORATION

Filing 1672

ORDER: Defendants' 1617 Motion in Limine is GRANTED in part and DENIED AS MOOT in part. See Order for details. Signed by Judge Larry J. McKinney on 4/24/2009. (GJQ)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA, Plaintiff,

) ) ) STATE OF NEW YORK, ) STATE OF NEW JERSEY, ) STATE OF CONNECTICUT, ) HOOSIER ENVIRONMENTAL COUNCIL, ) and OHIO ENVIRONMENTAL COUNCIL, ) Plaintiff-Intervenors, ) ) vs. ) ) CINERGY CORP., PSI ENERGY, INC. and ) THE CINCINNATI GAS & ELECTRIC ) COMPANY, ) Defendants. )

1:99-cv-1693-LJM-JMS

ORDER ON DOCKET NO. 1617 This cause is before the Court on defendants', Cinergy Corp., PSI Energy, Inc., and the Cincinnati Gas & Electric Company (collectively, "Cinergy"), Motion in Limine to Exclude Testimonies of Hugh Larkin, Jr. ("Larkin"), and Alan Michael Hekking ("Hekking"). Cinergy asserts that plaintiff's, the United States of America, and plaintiff-intervenors', the States of New York, New Jersey and Connecticut, and the Hoosier Environmental Council and the Ohio Environmental Council (all plaintiffs, collectively, "Plaintiffs"), experts' testimony is irrelevant to the issues that remain for trial and should be excluded. Specifically, Cinergy argues that Larkin and Hekking were proffered as experts on Cinergy's routine maintenance, repair, and replacement ("RMRR") defense, which is no longer at issue in this case.

Plaintiffs have agreed to withdraw Larkin from their witness list and submit that Cinergy's motion with respect to Larkin is now moot. The Court hereby declares Cinergy's motion in limine to exclude Larkin's testimony MOOT. With respect to Hekking testimony, however, Plaintiffs argue that Hekking provides context for the project at issue and lays a foundation for Plaintiffs' evidence that Cinergy should have expected its predicted increase in the hours of operation of its units to result in a significant increase in annual emissions. In other words, Hekking will testify to the impo rtan ce of these projects to increase capacity. After reviewing Hekking's report and Hekking's testimony at the first liability trial, the Court concludes that his report and testimony are not relevant to the remaining issue in this case or their relevance is substantially outweighed by the danger of confusion of the issues and would unduly delay resolution on the merits. Under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, the Court must assess not only whether an expert is qualified to testify to the matters at issue, but whether the testimony will assist the trier of fact. Fed. R. Evid. 702. The latter inquiry focuses on relevance. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 816 (7th Cir. 2004). The test for relevance is whether the evidence has any tendency to make a fact at issue more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. In the FRE 702 context, an expert's opinion may assist the trier of fact with any issue involved in the case; the expert need not opine about the ultimate issue. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). Here, the remaining issue in the case is whether, for each project still at issue, Cinergy should have expected the project to result in a significant net increase in emissions. Although Hekking's report

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summarizes the scope and purpose of several of the remaining projects, the conclusions he makes from those summaries relate only to the RMRR question; there is nothing to connect those summaries to an opinion about the reasonableness of a prediction about emissions increases. Moreover, the scope and purpose of each project, while relevant, is taken directly from Cinergy documents. Hekking's summary of them adds nothing helpful for the jury in deciding the ultimate question. Because Hekking's summary adds nothing helpful, his testimony is of little relevance. Therefore, under Federal Rule of Evidence 403, the relevance of Hekking's report and testimony on the remaining issue in the case is substantially outweighed by the danger of confusion of the issues. Plaintiffs proffered Hekking's testimony on RMRR and his admissible opinions relate to that topic. The Court has determined that RMRR is no longer an issue in the case; thus any testimony about it could lead the jury to consider issues outside the scope of the emissions question. Moreover, Hekking's testimony could add considerable time to the trial with little benefit. For these reasons, the Court DENIES as MOOT defendants', Cinergy Corp., PSI Ener gy, Inc., and the Cincinnati Gas & Electric Company, motion in limine to exclude the testimony of Hugh Larkin, Jr., and GRANTS defendants', Cinergy Corp., PSI Energy, Inc., and the Cincinnati Gas & Electric Company, motion in limine to exclude the testimony of Alan Michael Hekking. IT IS SO ORDERED this 24th day of April, 2009.

Distribution attached.

___________________________ _____________________________________ LA J. McKINNEY, JUDGE LARRY RRY J. McKINNEY, JUDGE U States District Court United nited States District Court Sou hern District of Indiana Southern tDistrict of Indiana 3

Distributed to: Scott R. Alexander TAFT STETTINIUS & HOLLISTER LLP [e-mail] Kevin P. Auerbacher STATE OF NEW JERSEY DE P T . OF LAW & PUBLIC SAFETY [e-mail] Thomas Andrew Benson U. S. DEPARTMENT OF JUSTICE EN V I R O N M E N T A L ENFORCEMENT [e-mail] Meghan Delaney Berroya SIDLEY AUSTIN LLP [e-mail] Samuel B. Boxerman SIDLEY AUSTIN LLP [e-mail] Phillip Brooks U. S. DEPARTMENT OF JUSTICE [e-mail] Jayna Morse Cacioppo TAFT STETTINIUS & HOLLISTER LLP [e-mail] Robert R. Clark TAFT STETTINIUS & HOLLISTER LLP [e-mail] Larry Martin Corcoran ENVIRONMENTAL AND NATURAL RESOURCES [e-mail] Carol Lynn DeMarco NEW JERSEY ATTORNEY GENERAL'S OFFICE [e-mail] Michael E. DiRienzo KAHN DEES DONOVAN & KAHN [e-mail]

Jason A. Dunn U. S. DEPARTMENT OF JUSTICE [e-mail] Steven David Ellis ENVIRONMENTAL AND NATURAL RESOURCES [e-mail] Julie L. Ezell DUKE ENERGY LEGAL DEPARTMENT [e-mail] Cynthia Marie Ferguson U. S. DEPARTMENT OF JUSTICE EN V I R O N M E N T & NATURAL RESOURCES [e-mail] Myles E. Flint II U. S. DEPARTMENT OF JUSTICE [e-mail] Richard Mark Gladstein U. S. DEPARTMENT OF JUSTICE [e-mail] Thomas Charles Green SIDLEY AUSTIN LLP [e-mail] Maurice A. Griffin NEW JERSEY OFFICE OF THE ATTORNEY GENERAL [e-mail] R. Keith Guthrie ATTORNEY AT LAW [e-mail] Sarah Dale Himmelhoch U. S. DEPARTMENT OF JUSTICE [e-mail] Eugene J. Kelly Jr. NE W YORK STATE ATTORNEY GENERAL [e-mail] Thomas E. Kieper UNITED STATES ATTORNEY'S OFFICE [e-mail]

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James A. King PORTER WRIGHT MORRIS & ARTHUR LLP [e-mail] Joseph M. Kowalczyk NEW YORK STATE OFFICE OF THE ATTORNEY GE N E R A L [e-mail] Jonathan F. Lewis CLEAN AIR TASK FORCE [e-mail] James A. Lofton U. S. DEPARTMENT OF JUSTICE [e-mail] Jennifer Anne Lukas-Jackson U. S. DEPARTMENT OF JUSTICE [e-mail] Jon C. Martin STATE OF NEW JERSEY [e-mail] Kimberly P. Massicotte OFFICE OF THE ATTORNEY GENERAL [e-mail] Dean M. Moesser DUKE ENERGY CORPORATION [e-mail] Carmel Alicia Motherway CONNECTICUT ATTORNEY GENERAL [e-mail] Michael Joseph Myers NEW YORK STATE DEPARTMENT OF LAW [e-mail] John D. Papageorge TAFT STETTINIUS & HOLLISTER LLP [e-mail]

Crissy Lyn Pellegrin ENVIRONMENTAL PROTECTION AGENCY [e-mail] Loren A. Remsberg U. S. DEPARTMENT OF JUSTICE/ENRD/EES [e-mail] Robert T. Rosenthal NEW YORK ATTORNEY GENERAL'S OFFICE [e-mail] Jeffrey K. Sands U. S. DEPARTMENT OF JUSTICE [e-mail] Justin Aaron Savage U. S. DEPARTMENT OF JUSTICE [e-mail] J. Jared Snyder OFFICE OF THE ATTORNEY GENERAL [e-mail] Kosta S. Stojilkovic SIDLEY AUSTIN LLP [e-mail] Katherine Lynn Vanderhook U. S. DEPARTMENT OF JUSTICE [e-mail] Gaylene Vasaturo U. S. ENVIRONMENTAL PROTECTION AGENCY [e-mail] Frank R. Volpe SIDLEY AUSTIN LLP [e-mail]

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