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Mistrial declared in dairy owners' suit against power station

Published November 5, 2013 10:17 am

Court • A challenge to juror's impartiality puts an end to the trial after weeks of testimony.
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After refereeing more than a month of testimony about the alleged effects of "stray" electrical current on Delta dairy cows, a 4th District judge declared a mistrial Monday in response to doubts the dairy owners raised about a juror's impartiality.

The dairies' suit against Intermountain Power Plant (IPP) operators had already been moved from Millard County to neighboring Juab County in hopes of seating an unbiased jury. But just as the final week of a contentious trial was getting underway Monday morning, Judge James Brady granted a plaintiffs' motion to end it and start fresh.

The ruling was based on an assertion, raised for the first time Monday, that the jury had been exposed to outside information, said state courts spokeswoman Nancy Volmer.

The dairy owners' lawyer, Jeff Gross, said the information was related to a meeting a plant manager, Jon Christensen, convened with most of his employees before the trial started in Nephi in late September.

Gross first raised the issue of the meeting in a Sept. 11 letter to the court. Gross alleged Christensen "advised the employees that the Intermountain Power Plant will be shut down, and jobs would be lost, if plaintiffs prevailed at trial."

IPP is among the largest employers in west-central Utah and a vital component of the state's rural economy. In the letter, Gross asked the judge to beef up the jury questionnaire to ensure that it would exclude anyone who might feel a verdict for the plaintiffs would hurt the power station.

"We were concerned about it [Christensen's employee meeting] as an attempt to affect the jury pool," Gross said in an interview. He suspects Christensen's message found its way to a juror through a family member, he said.

The Intermountain Power Agency rejected Gross' characterization of the employee meeting and his explanation for the mistrial as "nonsense."

"The reality is if you followed the trial on a day-to-day basis, it was apparent that the plaintiffs' claims weren't standing up scientifically. The plaintiffs moved for a mistrial and got it," agency spokesman John Ward said. "We were feeling very confident about the way the trial was going and looking forward to a verdict this week that would have settled this matter."

Ward said the meeting occurred, but it was held only to brief employees on the dairy suit, which has been the subject of intense interest in Millard County.

Most of the dairies near the massive coal-burning power plant, 18 in all, are suing the Intermountain Power Agency and Los Angeles Department of Water and Power, alleging the power station they operate releases current into the ground as it converts alternating current to direct current for long-distance transmission to Southern California.

Experts for the plaintiffs testified this current discourages the dairy cows from drinking water and undermines their immune systems. The dairies suffer excessive mortality rates and low production resulting in ongoing damages in excess of $400 million, they claim.

The plant operators, however, called experts who testified that stray electricity could never reach the dairies in amounts that could be measured, much less do harm to the cows. The alleged production problems are the result of the farmers' own management decisions, they said, and financial difficulties can be chalked up to market conditions, such as low milk prices and high feed costs.

In pretrial appeal briefs filed over expert witness testimony, defense lawyers ridiculed the plaintiffs' scientific evidence as "a contrived piece of theater" and decried the possibility that the plant could be shut down without having harmed the dairies.

This month's case, involving six dairies and their owners, was the first of three to go to trial.

The mistrial means that Brady will have to initiate a new trial, perhaps in yet another county farther away from Delta, and rehear days of expert testimony at enormous expense to the parties.

"We're sick about it," Gross said. "This is why we expressed our concern."

He said he will ask the judge for another venue change and to require plant operators to award the dairy clients their trial costs.

"I don't know what they can base that on," Ward responded. "There will be a lot of wrangling before we know where this is headed."





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