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September 27, 2003

 



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Courts | Article published Saturday, September 27, 2003
DAVIS-BESSE
ĎEthical violationí mars suit, utility says

By TOM HENRY
BLADE STAFF WRITER


FirstEnergy Corp. has accused a Toledo attorney of committing a "grave ethical violation" for representing a former South Carolina contractor he helped supervise at Davis-Besse in the late 1980s.

In a motion filed in Ottawa County Common Pleas Court, FirstEnergy claims that a wrongful-termination lawsuit filed on behalf of plaintiff William N. Keisler is frivolous.

FirstEnergy has also filed a separate motion asking Judge Paul Moon to disqualify Howard C. Whitcomb III as Mr. Keislerís counsel, on the grounds that Mr. Whitcomb might have to be called to testify about his former role with the company if the case goes to trial. "Simply put, Whitcomb committed a grave ethical violation when he accepted representation of Keisler as his attorney," the motion states.

Mr. Whitcomb was employed by Toledo Edison Co. as a Davis-Besse preventive maintenance program manager at the time that Toledo Edison terminated Mr. Keislerís contract in the fall of 1988.

A former Nuclear Regulatory Commission resident inspector in South Carolina, Mr. Whitcomb became a lawyer in the early 1990s. He has been a critic of both FirstEnergy and the Nuclear Regulatory Commission throughout Davis-Besseís record 19-month outage.

A lawsuit he filed on behalf of Mr. Keisler on Aug. 29 contends that his client was told to leave Davis-Besse in 1988 in retaliation for being critical of the nuclear plant in a progress report. Mr. Keisler was under contract to write the report as a follow-up to an incident at Davis-Besse in 1985 when the plant temporarily lost auxiliary feed water.

It further states that Toledo Edison and FirstEnergy, the nuclear plantís subsequent owner, have deceived the NRC about the extent of problems there for 15 years, and that the regulatory agency has ignored many concerns it has received since 1992.

Mr. Keisler, president of BKE, Inc., and Nuclear Maintenance Integration Consultants Corp., sued FirstEnergy on six counts, claiming violations of state and federal whistle-blower laws, breach of contract, fraud, and negligence.

FirstEnergyís attorneys said in a motion to dismiss the case that the lawsuit is "a clearly defective complaint that was only filed to harass or intimidate" the utility.

"Mr. Keisler has a legitimate complaint," Mr. Whitcomb told The Blade. "Itís not frivolous. Itís very much on point. It has to do with public safety."

Mr. Whitcomb said he is legally entitled to represent Mr. Keisler. "I have no intention of withdrawing voluntarily from this case. I donít believe there has been any ethical violation," he said.

FirstEnergy claimed the statute of limitations has expired for many of the allegations cited in the lawsuit. Mr. Whitcomb disagreed.

The utility submitted excerpts from a memo that it claims Mr. Whitcomb authored while supervising Mr. Keisler at Toledo Edison, in which Mr. Whitcomb identified some problems with the contractor. "The companyís defense is that Keisler and his companyís performance was subpar," according to FirstEnergy.

Mr. Keisler managed the massive rebuilding of Davis-Besseís reactor coolant pumps in 1986, the last time the plant undertook that multimillion dollar project. The pumps circulate coolant water through the plantís reactor during normal operations.

Davis-Besse has four such pumps, each built to last 20 years. A former engineer, Andrew Siemaszko, claimed in a whistle-blower complaint earlier this year that he was fired a year ago because he insisted on having all four rebuilt.

Go to www.toledoblade.com/davisbesse for earlier stories on Davis-Besse.




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