• November 19, 2012

Minnesota Litigator recently queried what the next big wave of litigation might be: Obesity? Food packaging? Liability for injuries in professional sports?  Legal trends are impossible to predict.  In fact, they are even difficult to perceive when they are happening.  It is only after data is (or “are” if you are a pedant) collected and analyzed that trends emerge.

There have been several signs lately, however, that the efforts made in exploring and exploiting alternative energy sources have had their fair share of “misses,” Solyndra being just one picked up by mainstream media as part of the presidential election campaign, and these might be a “growth area” for litigation over the next few years.

There have been other signs closer to home.

First, in late 2011, there was the two multi-million dollar lawsuits filed the same day (Nothern States Power v. enXco v. and enXco v Northern States Power).

More recently, Minnesota contractor, Fagen, Inc., sought a TRO in connection with another wind project that faltered.

And, on a far more modest level, there was the recently reported battle between the city of Orono and some residents over the installation of wind power on their property.

The year-old $350-million enXco/NSP battle shows no sign of settling down.  Recently enXco moved to exclude all of NSP’s experts.  Taking a run at a litigant like NSP, with counsel like Faegre Baker Daniels, to have all of its expert witnesses tossed out would seem to have a low probability of success.  The litigant and its law firm have the time and resources, one would think, to find the appropriate experts, with the appropriate background and training and the appropriate factual background from which to draw conclusions and reach expert opinions.

On the other hand, the upside of tossing out a litigant’s experts is so huge (gutting their case) that such motions are very common, if unlikely to succeed.  Hearing on the motion is not until March, 2013 before U.S. District Court Chief Judge Michael J. Davis (D. Minn.).  Stay tuned!

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