By Matt Masich, LAW WEEK COLORADO
DENVER – The three companies and two men named in last week’s Xcel Energy grand jury criminal indictment have brought in the big guns for their defense.
Bob Miller, managing partner at the Denver office of Seattle-based Perkins Coie, is representing Xcel. Miller was U.S. attorney for Colorado for most of the 1980s and Weld County district attorney for most of the 1970s.
Larry Pozner of Reilly Pozner is representing RPI Coating, Inc., and its president, Philippe Goutagny. Pozner is known as an expert litigator and co-author of one of the top-selling books on cross-examination.
David Kaplan of Haddon Morgan Mueller Jordan Mackey & Foreman is representing James Thompson, RPI’s vice president. Kaplan was the state public defender for Colorado for almost seven years. He and Pozner are former law partners.
They’re all defending against charges stemming from a 2007 fire at Xcel’s Cabin Creek hydroelectric plant in Georgetown, in which five RPI employees died. The men died while relining a penstock, or large water pipe, when a chemical they were using caught fire. They were trapped inside the penstock and died of asphyxiation.

‘When grand juries investigate…’
U.S. Attorney for Colorado David Gaouette, with assistant U.S. attorney John Hardier as lead counsel, charged Xcel with violating five Occupational Safety and Health Administration regulations and causing death. The maximum penalty is $2.5 million in fines.
Xcel subsidiary Public Utilities Co. of Colorado is charged separately for the same violations.
The dead workers’ employer, Santa Fe Springs, Calif.-based RPI, is charged with the same OSHA violations, along with a sixth charge for obstruction of justice for covering up, altering or destroying the journals, cameras and cell phones of some of the deceased. RPI’s maximum penalty is $3 million.
RPI’s executives, Goutagny and Thompson, are charged with the OSHA violations, but not obstruction of justice. If found guilty, they can be fined up to $1.25 million and imprisoned for up to six months. Neither men were arrested when the charges were filed and prosecutors aren’t seeking detention while the case proceeds.
Pozner, who began representing RPI in 2008, indicated in an e-mail that he was “disappointed” by the grand jury indictment.
“However, grand jury investigations are like the lambs in the nursery rhyme ‘Mary Had a Little Lamb’, Pozner wrote. “When grand juries ‘investigate,’ indictments are almost sure to follow.”

Puzzled by charges
The Department of Labor had investigated the accident for over a year, then turned it over to the U.S. attorney’s office.
“The government kept its entire investigation to itself,” said Pozner in a subsequent interview. “We shared much information with the government, but grand juries are secret, they are one-sided, so really the best and only place to assert our rights is in the courtroom.”
Pozner said he was “puzzled” by the obstruction of justice charge against RPI.
“No name is attached, so we will ask the government to specify what they’re saying happened and who they say did it.”
It’s exceedingly rare for workplace deaths to result in criminal allegations against the employers. Of the more than 200,000 workplace deaths OSHA has investigated, fewer than 100 have resulted in charges being filed and only eight resulted in a prison sentence, according to a 2003 New York Times/Frontline investigation cited by The Denver Post.

Distributed by Colorado Capitol Reporters