RvD trial day 4: settled!

All claims and counterclaims withdrawn. Jury dismissed. Here is my account of what happened in court today. These notes are not much edited.

I arrived at 9:10 AM. There was the appearance of a hearing with something missing, two plaintiff attorneys (probably), one woman sitting on the defendant side, nobody saying anything. Altonaga  sitting on the bench, waiting.

Eventually a man walks in and sits down next to the woman. Altonaga has a brief exchange with him and sets a hearing for Friday and they leave.

In the Gallery: Lukacs, Bernstein, Nunez. De la Barra and Johnson walked in at 9:15.

Then Altonaga called Rossi v Darden and told the attorneys they could set up. Altonaga left the courtroom, then it was “all rise” at 9:20 and she came back. Darden walked in with Erika Handelson., Lomax and Pace.

Lukacs asked the Judge for fifteen minutes to confer with Pace. She said, “brief, please,”  as I recall. They went out together.

Chaiken and Lomax walked out. Rossi came in. Annesser came in at 9:25. Chaiken came back in, started setting up four display boards, for the timeline again. Bernstein walked in with a box of sticky tags to use as markers on the timeline, as before.

If that timeline is used during testimony, I’d think of objecting to it. It is a form of argument. But I don’t know precedent.

Rise for the jury at 9:30.

Lukacs and  Pace came in, Lukacs started to say something, and Altonaga shushed him, the jury was coming in. Lukacs and Pace walk back to the Judge and go into her chambers, and she joins them. She comes out and sends the jury out for 15 minutes.

Lukacs was whispering to Rossi and other counsel. The entire Rossi team walked out. (There are two attorney conference rooms off the courtroom entry way.) Bell and Pace walk out. Chaiken stood in extended friendly conversation with Lomax. Bernstein walked up and shook Lomax’s hand. They are smiling. Darden remained sitting, not interacting with anyone. Serious face. The 3rd party counsel remain seated. Chaiken and Lomax continue to whisper and smile. Chaiken walks out, Bell walks in for a moment. Then Nunez and Bernstein whisper. Nunez appears bemused.

Whatever is going on, it doesn’t look like Bad News. The timeline was better lined up this time. Bell walks in, whispers to Lomax, smiling. Lukacs comes in an calls on Nunex and de la Barra to come out.

This was high drama, while being very quiet. It’s obvious what is happening. They are discussing settlement, at least of some issues. They have made enough progress to pull in the 3rd party attorneys.

Erica and Lomax chat, Nunez walks in smiling. All return. Lukacks asks me to leave (apparently by name, because Pace asked “which Lomax, both are named Lomax.”) But I’d immediately risen to go, because I knew what was happening. This was to be a brief closed hearing. Pace said to me, “Ill talk with you later.” I sat on the comfortable foam cushions in the central area of the 12th floor, looking at the view, completely pleased. Sure, we want the truth, but at what cost? We already, speaking for the public, know enough to have a good sense of what happened, of the reality of this history, if anyone wants to know, the information is there. If people don’t want to know, even a jury decision won’t convince them. “Punishment” has low value.

I noticed that a man who had been there, off and on, was sitting outside also. I walked over to him and ask him his connection with the case. This was Darden’s son, also named Tom. We chatted about the case and the appearance that it was settling. Darden came out and I mentioned I’d like to talk with him or part of the IH team before I left Miami. He had me give my phone number to his son. Then the jury walked out, obviously dismissed.

Lukacs came out and I asked him if he could make any statement about  what is going on. “I’m not at liberty to say” Rossi walked out and I shook his hand and he warmly returned it. Pace chatted with me for a minute. He wanted to be very careful, but he said that the obvious was happening. He said that he would be releasing a statement later. My sense was that there were no conditions to the settlement, the complaint was dropped and likewise the countercomplaints. Over. Finished.

Darden was philosophical. He was, here, accepting a loss of about $20 million, but Darden, with Cherokee, certainly risks that level of investment commonly, and risk implies that sometimes one will lose. In fact, though, LENR won, because the bold move to invest about  $20 million in Rossi technology created a movement that raised, for that purpose, through IHHI, $50 million. Their goal was to find out about Rossi’s claims. Reasonably enough, they found out.

Until I see it officially announced, I cannot be 100% sure that Rossi v. Darden settled on day 4 of the trial, returning to status quo ante. I don’t know if the dismissal was with or without prejudice, by my sense is that it would be with prejudice. However, I’d assign a probability of full dismissal at 99.9%. Good enough for folk music.

Okay, it’s now in the docket as 332. The “case settled.” We have no official details other than that.  I expect to see a joint stipulation in short order that will give a little more detail. Probably ”

What does this mean?

It means a lot and it means less than many are saying. My report,  above, is being repeated with what is standard: it is interpreted favorably to existing opinions. There is good legal analysis on LENR Forum  by woodworker and Mike Dunford (both lawyers, IANAL). I wrote that Darden was pensive. I will emphasize that this was the appearance: both sides were ready to start with the evidentiary phase of the trial. Chaiken was setting up his timeline (which might have been shot down as argumentative, but the trial never got to that point). It was all business. Darden looked pensive.. He might look that way if he had mild indigestion, and this could be totally meaningless. Frankly, I wasn’t looking forward to what would come next: a series of useless evidences that even if completely true would be irrelevant except within a highly misleading context.

I.e., say, Rossi had proof!, proof, I tell you, that someone in Cherokee was happy about the Agreement with Rossi, in a private memo. Darden is the CEO of Cherokee, and IH’s business was consistent with the long-term goals of Cherokee, but Cherokee never starts risky ventures directly, it always does it through liability-limited companies, otherwise the entire $2.2 billion entity could be pulled down by a single error. Instead, CIP, with true Cherokee LLCs, invests maybe $25 million, which is what they have at risk. These LLCs are independent, attract their own investors, may take out loans, all normal business. Some — a few — ultimately fail,  but Cherokee never is itself at risk beyond their investment. That is absolutely necessary and normal for the kind of business they do.

So Chaiken would be taking a document out of context. He’d combine it with another alleged fact he had. Half of the original $1.5 million was paid from Cherokee. If Cherokee were the full owner, as Rossi claims to have believed, they wouldn’t have paid half, they would have paid the full amount. Rather, this was almost certainly a loan to Darden, personally guaranteed, and I’d bet he paid interest at the statutory rate. These guys are not stupid!  None of this would be legally adequate to overcome the standard Entire Agreement clause of the Agreement and the Statute of Frauds, all of which is intended to prevent legal disputes like this.

I am trained to create excitement and connection. I noticed my reaction to what was coming and deliberately dropped it. In that process, for a short time, my face may have shown something like an upset stomach.

Darden’s countenance did not telegraph that he thought they were going to lose, which is a claim being made on ECW.

The appearance was that Lukacs initiated the out-of-the-courtroom  discussion with Pace. That could be misleading. I have no strong evidence that Pace did not privately say something to Lukacs, with then Lukacs merely being the one to ask the Judge for delay in starting the presentation of evidence to the jury. That was initially delaying the jury entry. Altonaga wasn’t eager for delay, she asked Lukacs to be quick. It is very clear, though, that this was not pre-arranged. There was no sudden shift in mood, not immediately. Altonaga waited about 15 minutes, then told us to rise for the jury. Lukacs and Pace came back in and Lukacs addressed the court. His comment was not intelligible to me. Altonaga told him to wait, the jury was coming in. Then, when the jury was seated, Lukacs and Pace approached the bench,  then went back into the judge’s chambers, and she went there as well. She came back and sent the jury into a 15 minute recess. Then came much scurrying in and out of lawyers and parties. The courtroom was very quiet, if I was close to attorneys whispering, mostly I still couldn’t hear anything. But the mood brightened quite visibly and attorneys from opposing sides were smiling at each other, sharing what, I noted at the time,  did not “look like Bad News.” To anyone.

(Some have claimed that this was based on lawyers gleefully anticipating  being paid. See below about anti-lawyer bias. If what they wanted was more money, this wouldn’t be good news. If what they want is client benefit — which is what their ethical standards require — this was good news for everyone, assuming that there were no poison pills included. Good News compared to fighting to the bitter end. Far less stressful.)

When the 3p attorneys were called out, it had gone beyond obvious without anything being said. A settlement was being negotiated. From the context, I knew it had to be simple and decisive. Altonaga would not tolerate less, I’m sure. It would leave the parties free to negotiate anything they wanted that they could agree upon without legal coercion. It could not seriously damage any party, because they would otherwise prefer to finish what had been started — at great expense!. But it would almost certainly not involve any payment, meaning that all parties would bear their own expenses. As soon as significant compensation or other changes would enter the picture, it would get complicated. They could have asked the Judge to delay the trial a day so they could work out a more complex agreement. My sense of Alttonaga is that she would not have accepted that. So it had to be simple, something that both Rossi and IH could accept, and the 3p attorneys would accept (though I’m not sure they would have had the power to stop it.)

I doubt if there was any specific agreement regarding paying legal costs (other than something very simple like “parties to bear their own costs.”) I had a few words with IH counsel before this was complete. Somehow in that, I don’t remember who said it, I got that what was being proposed was total, mutual, dropping of legal claims, very simple, with everything else being subject to direct agreement of the parties outside of court (which would be, essentially, return to status quo ante). Lukacs was able to convince Rossi probably on the strength of his personal reputation and an assurance that there would be good-faith negotiations. (This is radically different from what Annesser had done in December 2015, when he threatened IH with suit for “anticipatory breach of contract.” Pugnacious, what some people think attorneys should be.)

As soon as Rossi wrapped his head around the possibility, I’m sure he’d feel an immediate sense of impending relief.

Lukacs and Pace returned and prepared to address the court. At that point, Lukacs asked that I be sent out, apparently by name (because of a question by Pace about “which Lomax”)?

Getting up to go (I did not wait until the Judge ordered me out, I knew she would grant the request to close the court), I was close to Pace and he said to me, “I’ll talk with you later.”

Outside, I eventually asked who the other man sitting out was, and he, (Darden’s son) told me. We talked about the case and the apparent settlement. There were mixed feelings. He — and I — were looking forward to resolution, and this was a bit like charging out into a battlefield, ready to fight, some believing the enemy was evil and had fangs, and someone blows the whistle and says, “Game over, shake hands and go home!” What? Shake hands with Satan?

Yes. Shake hands with that other human being, now, either work together to build a better future for all of us, or stand back and allow others to do  that. Don’t keep fighting, it is the fighting and hatred that is Satan’s work. This is all long-term ontology for me, and training.

At some point Darden came out and was talking with us. I said some things about the settlement and about IH future. He said, “Smart man.” Darden does not say a lot, is not chatty, but conveys confidence. If you don’t trust him, don’t invest with him! He’s not going to argue. If needed, he has others to do that for him, called lawyers. Try to go and tell Bill Gates he’s stupid for supporting LENR research. See if you can even get those words to his ears. He has experts to filter information flow. He is not Donald Trump, even though he’s richer. Heh! Sorry, Trump fans, but I think you could agree that Trump is not Gates. If not, my condolences, it takes all kinds.

When the jury walked out we knew that it was over. There was no way  that Altonaga was going to allow any delay in the trial, she was already fried and wanted to clear her docket ASAP. If they wanted to dicker over terms, fine. Let them dicker, out of court, but not delay the trial.

Then Pace came out and came up to me. Man of his word. We talked a little. Lukacs came out and I asked if he could comment. That is when he said he was not at liberty to comment  Now, here is where I can see a strong difference between Pace and Lukacs. Lukacs was blunt, pure business. I knew that what he was saying was probably legally necessary. I did not resent it, and, in fact, I smiled and thanked him. He was not smiling. He was like a surgeon who had just extracted a life-threatening tumor in an operation painful to the patient, who is totally focused on  being a doctor and dealing with the physical. I see Lukacs as highly professional, but not necessarily a people person. Whatever people skill he has — and they must be considerable in some ways — he wasn’t using them with me. Just saying. He did nothing wrong.

Pace essentially told me the same thing, but in a way that would normally generate positive feelings. He showed by his affect that he was friendly and would like to tell me what was happening, but he said that he needed to wait to be sure, “as a caution.” At some point Lomax told me that he was intending to provide me the daily court transcripts. I asked him to send them to me anyway, please. And he said he would. This would be a neutral contribution that he and Jones Day could provide my work. I was planning to also ask Rossi counsel for that.

When the jury walked out, it was completely obvious that the case was over, even though Altonaga did not have a marshal tell those outside that they could come back in. I went back in, and the courtroom was almost empty. Rossi’s counsel had all walked out carrying boxes of stuff.

Now, on LENR Forum, to some degree, in comments here, to some degree, and more on e-catworld.com, there are those creating fantasies of what the “settlement” was, and then, generally, declaring a huge victory for Rossi, assuming that the License cancellation would stand (neglecting that this unilateral action had been ignored by IH and correcting this had not been a dismissed claim of theirs. Why waste legal time and money over a nullity? It’s moot unless IH attempts to rely on the License, which is very unlikely, unless Rossi actually does hit the market, then it could be worth billions, so … worth even huge legal expenses, and with a slam-dunk case (which we have seen, even slam-dunks sometimes don’t go through the basket, but people at this level are constantly playing the odds as they read them. Relatively disempowered people look for certainties and even prefer to pretend them, and the dysfunction behind this is common and training to overcome that is rare. There is very little genuine certainty in life, but some of us are afraid of that and attempt to deny it.)

Mary Yugo actually made a decent comment on why this is. “She,” however, is probably operating with the instinctive responses being “wrong.” Rather, they are, as pointed out, functional in emergencies but then can disempower us if maintained beyond emergency conditions. In my training, the emergency response is called an “amygdala hijack,” and it is quite visible and recognizable, and also easily handled, but not by declaring it “wrong,” which then sets up an internal power struggle, and the amygdala is designed to always win this struggle, it literally hijacks the entire structure of the mind. Rather, the amygdala is a primitive machine, but it understands language and is programmable. Actually doing this, programming the amygdala, can look like a miracle. When the amygdala is active, the entire and vast associative engine of the cerebral cortex is turned to the service of the emergency response. It will find “proof” that it is “right,” and may go to extreme lengths to preserve identity, faced with what it sees as a challenge. The simplest solutions can be practically invisible, because of this activity.  In a word, reactivity can make us stupid.

To accept what I think was the actual “settlement,” something very simple was necessary,  that Rossi had in his power, in theory, even before he filed the suit in April, 2016. Rossi had to give up his attachment to “being right.” He had to let go. There is a predictable result from this, I’ve seen it hundreds of times: an enormous relief and a transformative increase in joy and power. You can see this in JONP. Someone has also reported that Rossi is “Happy, happy.” (An unattributed rumor passed on by someone who is sometimes accurate, on LF.) From that, conclusions are being drawn that Rossi must have gotten what he wanted.

While we cannot at this time know if there were any stated conditions, they were not, I’m sure, stated in court and would not be legally binding. The most I expect was actually agreed in court was the withdrawal of the claims and counterclaims, the dismissal of the case, with prejudice. If you were worried for a year that you might not only not get what you wanted, but might end up essentially screwed, bankrupt, and then it all goes away, because you are willing to let go of what was driving it, being very happy would be normal. Even if you aren’t getting what you wanted.  Manic attachment to declared purpose is not a formula for happiness, it’s the opposite. Even if one “wins,” sometimes. Happiness, genuine happiness, comes from a realm that is not the realm of right and wrong, good and bad, but that is simply present to life. Rossi can now enjoy playing tennis with his wife. And his wig looked nice. Life is good. His work is fun.

Planet Rossi has expressed some amazement that I didn’t attack or lash out at Rossi. That is because they largely bought a world-view that I was a paid FUD-er. Some of them still repeat that charge as if it was proven and admitted. But it has been continually denied, ever since the issue was first raised, and all this means is that people will often believe what makes them feel most secure. I do not allow my security to depend on fact and conditions. It depends on trust in reality, only,  independent of conditions. That, again, is training, though it is also connected with what I’ve been studying since my twenties. I recommend, highly, declaring and standing for a full and complete trust in reality itself. It’s not necessarily easy, even though it is obviously necessary for true security. I’m going to die. That’s not bad news! I might be wrong about this or that, various ideas about reality, but what I trust is not my ideas, but reality itself.

I am also human and become afraid, but when I remember the commitment, the fear vanishes.

My impressions of the settlement are informed, I was a few feet away when it happened, and talked with some of the players. That impression includes that there might be additional voluntary agreements.  There are some simple ones that might either have been negotiated, involving claims in the lawsuit that a good mediator may have been able to turn quickly into agreement. Most likely, though, any complications would have prevented full and complete agreement in the short time available.

The fact of withdrawal of claims cannot be used to show anything that was not already obvious from the known evidence and I see no way to assume what was in any binding agreements, other than an assumption that if these were seen as harmful to any side, the settlement would have failed.

I intend to continue organization of case evidence, including presenting opinion, but “attacking” Rossi has never been my agenda, rather, it has been to share evidence and my sense of implications. There are those in the various communities involved who are still fighting the war. They will continue to make themselves unhappy and will not contribute to the future of LENR. They will not help Rossi nor IH. IH never wanted this fight. Dewey Weaver’s opinion — and I like Dewey — was never more than his informed opinion plus his own personal reactions.

When I wrote the first draft of this page, I mentioned expanding it “when I got home” That meant when I was back at the apartment where I am staying. I intend to continue organizing the case material when I am back in Northampton, probably next week.

Update, July 20, 2017

I have the Day 4 transcript.

It generally confirms my impressions. There are two minor differences:

When Lukacs asked to speak with defense counsel, it was not just Pace, it was also Bell. I’m not surprised, but apparently I didn’t notice it at the time. Why Bell? Probably for the same reason as was behind Lukacs making the request. A less involved attorney, less committed to the fray. I had some brief, pleasant conversation with Bell. Very nice guy. Same with Pace, by the way.

Then there is this interchange, when Altonaga had sent the jury out for a recess because of the request by Lukacs and Pace.

(A recess was taken from 9:30 a.m. to 9:55 a.m.)
MR. LUKACS: Sir, would you mind excusing yourself?
GALLERY SPECTATOR: Yes.
MR. LUKACS: I was just asking him to leave for a
moment.

I think the recorder missed something. This wasn’t me, this was probably Tom Darden, the son. Just before this, Lukacs asked for Mr. Lomax to leave, by name. Pace said “There are two Lomaxes.” I did not reply, I just left, because, obviously, Lukacs was referring to me.

 

RvD trial day 3 (Jury selection and Opening Statements)

Official Transcript of Day 3.

Two cases, sentencing hearings, were heard by Altonaga before turning to Rossi v Darden:

  • An elderly defendant had pled guilty to possession of child pornography. “I was curious,” he said in his statement. He had, however, downloaded multiple files from a Tor directory. Altonaga read the filenames and described the videos. Sex between adults and prepubescent children. The man had previously been convicted of sexual conduct with minors, was registered as a sex offender, was on probation. Curiosity killed the cat. Sex addict, I’ve seen and known many. We had a President who was a sex addict, willing to risk his entire career because an intern offered him some candy. Addictions can kill you. Altonaga sentenced him to 20 years. She read the descriptions of the videos without showing any emotion. He will almost certainly die in prison, and his life would be at risk there from other prisoners.
  • A relatively young man, perhaps  approaching  middle age, pled guilty to distributing marijuana. He had been a mule, transporting, as I recall, roughly 500 kg from Canada 0ver a period  of time. There was a plea agreement. Probation. The man turned around, looking at someone in the gallery, and flashed a smile, which I read, perhaps unfairly, as “I got away with it!” For his sake, I would hope that this didn’t translate to “I can do it again.” On the other hand, this is a mostly victimless crime — my opinion, though I have extensive knowledge of the topic.

So then RvD jury selection began again. This time, almost the entire Gallery was devoted to  additional prospective juror seating. Others were allowed one row, six rows for possible jurors, and one empty row in between, to buffer the jurors from the public.

They started with sixty candidates, but one was excused before being brought in. In reading the list of witnesses, I noticed that Rossi was read with the honorific, “Doctor,” but the actual PhD (his expert witness Wong) was not. Nor were Bo Hoistad or Levi, who may have equivalent degrees.

The  Judge explained the burden of proof for decision in a civil case as “preponderance of the evidence,” there is no prejudice for the defense as in criminal cases. However, with an “affirmative defense,” the defense has the burden of proof that the defense applies.

The case overview was read by the Judge.

The prospective jurors were told that the trial  was to end the week of July 24.

One of the questions asked of the jury: “Have you ever been reprimanded by a third party for doing something your boss told you to do?”

There was a lunch break from 12:30 to 1:30.

With the panel still out of the room, the way that boiling down the jury occurred was that the judge made some recommendations to excuse certain jurors, and then the parties objected or didn’t. Almost entirely, or entirely, I’m not sure, they didn’t. This was very fast and I didn’t understand the language at first. I tried to keep track of jurors “struck,” but I think I missed the first ones. What I recorded, probably, was the ones struck on unprompted motion by the parties. That was 32.

The lawyer would say the juror number and something like strike for cause,” or just plain “strike.” if the latter, it was discretionary, and each party had only so many discretionary dismissals. Rossi and IH used them all. I’m not sure if the 3rd party lawyers used any. When this was all done, they were down to 13 jurors. There was no objection and Altonaga mentioned that if necessary, they could deal with the possible extra juror later. (The federal rules have 6-12 jurors, but apparently it is possible to have more if the parties consent, and if it is necessary to dismiss a juror later, they would still have 12.)

The last thing anyone wants is another mistrial. If that was going to happen, the morning of the second day was much better than later!

Then the jurors were brought in and the names of those chosen were read, and the rest were allowed to leave (with the same joke about locking down the courthouse. — it is probably also what they would do. Altonaga did not repeat her joke about “who is enjoying being here?”)

So, then, opening statements.

Plaintiff (Rossi, delivered by Chaiken again)

Quotations here are generally from the Law360 article, which was good coverage of the arguments presented. My comments are then in italics.

Chaiken told the jury that Cherokee boasted about the technology.

My recollection is that this was an internal memo, where distinction may have been lost between Cherokee qua Cherokee and Darden and Vaughn and the new LLC. The point would be that Cherokee considered itself the active party, supporting the Rossi narrative.

When it came time to pay, they refused.

This, again is familiar story. This doesn’t match the evidence, i.e., as to timing. IH protested that Doral was not the GPT and Penon not the ERV (for a GPT) no later than December of 2015, after Rossi had excluded the IH engineer, Murray, and the demand for payment was not issued by Rossi until toward the end of March, 2016. Annesser threatened IH with suit for anticipatory breach in December. It was not some sudden surprise, as implied.

Chaiken quoted a “Leader in LENR,” praising Rossi and the  technology. Then at the end of those quotations  he revealed that the “leader” was Darden.

As if Darden being initially enthusiastic proves anything about what happened later. It is quite clear that Darden was enthusiastic, but if one reads the statements to investors there were also caveats and concerns. Chaiken is presenting cherry-picked pieces of the story, which may well be normal for attorneys, but … this factoid demonstrates nothing of relevance, as far as I can  see, other than what is obvious: Darden hoped for success. In order to maintain the full Rossi narrative though, Chaiken will need to show that Darden was lying to his own investors, which  is about  the most personally dangerous thing for an investment manager to do. Doing that, one can end up bankrupt and even in jail.

Chaiken claimed that if Rossi had known that IH wasn’t fully owned and backed by Cherokee, he would not have agreed.

As Pace will point out in his opening, the License Agreement contained an Entire Agreement clause, makin it a clear matter of written agreement that was no dependence on prior representations (oral or drafts or whatever). As well, Rossi had the better part of a year to change his mind with no loss (and even some gain, i.e., perhaps interest on $1.5 million. All he had to do was cancel by returning the $1.5 million.)

Chaiken created a “timeline,” this day (unlike Wednesday).  It was a set of charts with a horizontal line with years labelled, set up on a  series of easels. Three, I think. The lines did not line up and the charts were tilted.

Small thing, it might seem. However, my communications training would suggest avoiding that, it looked messy, and it got worse when Chaiken wrote on the chart. These things create subtle impressions.

Then, Chaiken wrote on the chart.

His writing was small and messy and mostly unreadable. It was surprisingly unprofessional. Chaiken is not the most experienced lawyer on the Rossi team, I’d bet that this would be Lukacs, but Lukacs is new to the case. Nevertheless, Chaiken does have substantial experience. He speaks in bursts, it was quite noticeable. The effect on me was that I didn’t trust what he was saying,  but I know too much, I know many of the half-truths and misrepresentations already,  so it is difficult for me to  assess the effect on the jury. I’ll be watching for clues.

As I write this, I’m sitting in an apartment with a view of the Miami skyline to the west from a point a few blocks north of the Court. There are fireworks. Yay freedom!

As Chaiken described some  bit of evidence, he would place a marker on the chart for when this was said. It took me some time to figure out what he was doing. My guess is that some jurors would be similarly confused.

He placed almost all the markers above the line, as “positive.”And then he claimed that in May, 2015, Darden changed his tune. What happened in May, 2015? “IH sold 4% of the company for $50 million, to Woodford Fund.

In fact, none of the company was sold, this is a misleading representation. It is in the Statement of the case this way:

“Second, in the alternative to their claim for breach of the License Agreement, Plaintiffs claim that Industrial Heat and IPH were unjustly enriched by certain benefits provided to them by Plaintiffs. Specifically, Plaintiffs claim that Industrial Heat and IPH successfully sold 4% of their
company in return for $50 million as a result of Dr. Rossi’s efforts in continuing to provide consulting services to Industrial Heat and IPH.”

There is no evidence that the Woodford investment was a result of Rossi’s continued activity, but was apparently in spite of it. When I get a chance, I’ll link to the Ampenergo Notes. The investment was planned in 2014. Woodford did visit the Plant in February, as the “test” was beginning. I’d have wanted to see it too. I would not have been impressed by an alleged 1 MW plant with the alleged steam disappearing through a hole in a wall, invisible, with no major radiant heat.

Second, 4% of IH was not sold. From whom was it bought? Who was allegedly enriched? What actually happened was that Woodford wanted to invest, but did not want to invest in the planned master LLC, IPH International, Bv. Why not? Almost certainly to avoid placing their investment at risk from Rossi behavior. IPH was on the hook for the License Agreement contingent liability, if that existed. (That is why IPH has been sued.) Instead, IH itself was sold, in toto, to IH Holdings International, Ltd., through a stock swap. So the original investors became investors in IHHI. They did not receive payments. Then Woodfford was allowed to buy preferred stock, at about $45 per share, this stock, if I understand it correctly, has the same voting power as shares worth 4500 times less.

This was a device for allowing Woodford to make a major investment, supporting the goals of IHHI (which is about research and development in LENR, definitely not quick profit), while allowing operational control to remain in the hands of Darden and other major investors. Obviously, Woodford trusted Darden and friends. This wasn’t an arms-length sale establishing a value of the company. IHHI has spent much or most of that investment, and Woodford, per Ampenergo  and IH deposition, was prepared to invest another $150 million if needed (and may still be so prepared). So if they  were convinced it was appropriate, IHHI could have paid Rossi his $89 million and had money left over for commercialization.

Nobody was “unjustly enriched.” IH was, perhaps, rewarded for taking a bold and very risky step, buying the License from Rossi.  That made the entire field of LENR research safer for investment, though still very risky. Rossi is angry, obviously, because he didn’t and couldn’t get any of this money without doing what he either couldn’t or chose not to do, teach IH how to make devices that would pass fully independent testing.

“They wasted no time telling investors and potential investors that E-Cat actually works and that they were in possession of the technology,” Chaiken said.

At one point, in an investment memorandum, International Heat [sic, Industrial Heat] said the future success of the company was dependent on one key individual: Rossi, according to Chaiken.

This is all fundamentally irrelevant to these case. It establishes, if accurate, that someone was enthusiastic about the Rossi investment. (Who is not specified in this report, and the Chaiken opening is quite vague as to who did or said what. “They” is not specific. However, this is just an opening statement and can be vague. The goal is to plant ideas in the minds of the jury, that they then may stick facts they learn on.)

“They’re telling their investors they’ve got LeBron James on their team and if they’re going to the NBA Finals, they’re going to ride him all the way there,” he said.

There is no doubt that Darden was optimistic. Had he not been optimistic, behaving consistently with that, Rossi’s long-term behavior was well-known. He’d have pulled the plug.

But International Heat changed its tune in May 2015, he said, when it successfully sold 4 percent of the company for $50 million. After that investment, Chaiken said the narrative changed, and the company began to say that Rossi was unreliable and that the test results of his E-Cat technology were unreliable.

That was a highly selective reading of the record.

The evidence that has been revealed to the public shows that Darden had always, with investors, maintained caveats, and questions about the various tests, such as the Validation Test,  and that Rossi had refused efforts by IH to gain more independent support for claimed results. IH simply did not use these to pull the plug on Rossi, continuing to hope that he would reveal what was needed to make devices that worked. Depositions show that if there was even a 1% chance that the reactors actually worked, with a transferable technology, they were willing to continue.

Chaiken is not about to mention the obvious turning point. By May, 2016, IH was realizing that they didn’t know what was actually happening in Doral. At the beginning of July ,then, Vaughn informed Rossi that he would be visiting with the new IH Director of Engineering. Rossi refused to allow it, giving no particular reason. This was a violation of the Term Sheet, and if this had actually been the GPT, would be a major offense, not allowing IH to observe the test with their own experts. (Rossi also prohibited independent experts from observing the Validation Test, claiming it would cause him “big problems.” Indeed.) At that point, all possibility of cooperation vanished. Rossi was shutting IH out. Johnson, in December, backed up Rossi, and so did Annesser.

Of course they changed their tune!

Defendants (Darden et al)

Christopher Pace of Jones Day … told jurors a different story, one in which his clients were deliberately lied to regarding the performance of the E-Cat.

That’s an easy take-away, but not the emphasis of Pace. Rather, he talked about, for  example, a “fake customer,” and various examples of fakery shown in the evidence.

… That [GPT] performance test allegedly took place in a warehouse in Doral, Florida, but Pace told jurors the whole thing was a sham.
He said his clients let Rossi take the equipment from North Carolina, where the defendants are located, to Florida because Rossi said he had found a customer that wanted to use the E-Cat and could test it in a real-world scenario. Rossi told them the customer, JM Products, was an affiliate of Johnson Matthey, a U.K.-based multinational chemical company.

This gets really interesting. Rossi denies, under oath, that he told IH that about JM. Rossi has claimed that Darden has perjured himself, yet the documentary shows that IH believed that JM (notice the initials!) was the real customer. Rossi did not deny that to them, but affirmed that “their customer” was JMP, a newly formed corporation, formed by Johnson, all the while claiming that maybe the owners, after some successful operation, would allow their names to be revealed. And “I wasn’t supposed to mention their name.” This was outright lying while attempting to set up plausible deniability, and the jury will see this easily in the evidence. No knowledge of nuclear physics or steam engineering needed, just ordinary common sense.

James Bass, in correspondence with Rossi, clearly thought the real customer was JM. And Johnson admits that his certification that the owner of  JMP was a “U.K. entity” was false, but a plan, and they decided not to create the “U.K. entity” because it was too expensive.  However, why would they even want to create a U.K. entity? It is totally obvious: to justify that declaration that allowed the appearance to continue that JMC/JMP was owned by JM, a U.K. entity. Rossi will claim that IH knew that the “customer” was the Florida corporation, but who was the owner? The real party in interest. They had no way of knowing  the reality other than what Rossi told them,  and he was lying. There was no public record of the ownership. Rossi also demanded that IH not ask JM about the affair, it might spook them. This is all plain in the record.

Pace told jurors that his clients tried to gain access to JM Products’ warehouse but were blocked and told that the company was engaged in a secretive manufacturing process. When International Heat finally got an engineer into the warehouse, they found clear problems, he said.

The Law360 reporter is quite good. However, what I notice is nuances that she would not be aware of. IH did not attempt to gain access to the JMP customer area, where “secrets” would allegedly be, but to their own Plant, when  that access had been guaranteed by the Term Sheet, the agreement between IH, Rossi, and JMC (later JMP). There were problems visible when Murray finally had access. He  raised the issues with Penon, verbally, and then in writing later. Penon did not respond in writing. As I recall his deposition, he claimed that this was because he had already answered the questions verbally. This was radically unprofessional. We still don’t know what his answers were. It is not that the questions were necessarily sound. Murray ight have made mistakes. But this is not how a responsible engineer would behave. Not if the goal is convincing a company  to pay $89 million for test performance. Rather, if the goal is to satisfy a technical requirement for a signoff, he signed off, and too bad if they  don’t believe him. That is why IH sued Penon, but couldn’t find him to serve process. Chaiken claimed he would be at the trial to testify. We will see.

The amount of water that Rossi claimed the E-Cat machines were turning into steam each day — about 9,000 gallons — was impossible, because at most, the pumps available there could pump only 5,000 gallons of water per day, Pace said.

This is a complex issue. The Penon report claims that outlet pipe pressure was at atmospheric, and this pressure would propagate back to the individual reactors.  The pumps used have a particular rating. In a post yesterday on e-cat world, Engineer 48 — who has claimed to be in direct negotiation with Rossi about reactor installations — claimed that the pump rating used by IH in the opening was based on rated flow against a particular back-pressure, if the back  pressure  were lower, more water could be pumped.

My understanding is that these were metering pumps,  designed to insert a measured flow. As Penon claims very constant water flow,  this would be likely to be how flow was controlled. There was also a pump in the customer area, apparently, a whole can of worms that could have been used to create certain appearances. IH will need to establish fact here, and that is what all the opening statements are doing, proposing fact that they will attempt to evidence during that phase of the trial, and proposing interpretations for the jury to keep in mind. This, again, is easy to understand.

The actual flow meter used was removed by Penon at the end of the test, but  it appears that IH has tested identical flow meters, and, as installed, they  can fail to accurately report flow under some conditions as may have existed, but this became difficult to clearly verify due to the removals by Rossi. (Others have pointed out possible  failure modes, and flow meter failure has featured in prior LENR disasters, i.e., apparently successful tests that were not.)
IH’s expert witness,  Smith, has opined that the system was flooded, and equipment that would have prevented that or detected it was removed by Rossi, it is alleged, before the beginning of the test. My sense of the test setup is that partial flooding, at least, would actually be likely. Consider the condition of a failed reactor (and apparently, by the  end of the test, most reactors had failed): Constant flow of water in, but no boiling, say a heating element burned out, or the electrical input was inadequate to boil the water, what would  happen? The reactor would fill with water, and then this water would flow in the outlet pipe. Penon’s protocol declared that what was done in the customer area need not be examined, thus demonstrating his practical incompetence.  It matters, because there were various frauds (or accidental errors) that could be introduced in the customer area, and for $89 million, one would want redundant measures.

International Heat had also called Florida Power & Light to check on the electricity records for the warehouse and found discrepancies with what Rossi was reporting, according to Pace.

I’m skeptical about this, and so will be the Jury, I think. There are details to examine. I think that what was recorded by Penon was actually recorded by Fabiani,  there is evidence for that. What should have been recorded would be accumulated power usage, the meter reading, not daily usage, which would then be calculated. With that, an error in recording would then be corrected by the next day’s reading.

(The Penon report also has a problem in this way with water flow. The flow meter was not a proper meter for the expected flow, it was too insensitive, operating below minimum rated flow. However, there should still be variation in daily readings, but Penon shows none. What should have been reported as raw data was actual meter readings, not a calculated difference.)

Florida P&L will report, on bills, actual meter readings. Power usage is then calculated. So error in one day, if that is what happened, should be corrected by the next day.

Fabiani, by the way, was on notice from IH that if he did not disclose full data and information to IH, he would be what he feared, “involved” in the lawsuit. In spite of that, he acknowledged destroying the raw data, and his emails with Rossi and Penon.

The FPL discrepancy is a mystery, and that comes out in depositions. It’s reason to suspect something, but proves nothing and is not even strong circumstantial evidence. IH would be advised to keep the case as simple as possible. Do not present mysteries to the jury, present clear fact and clear conclusions.

He said the defendants acknowledged to investors that Rossi was a risk because of previous failed business ventures and a reputation for being difficult, but they gave him latitude because they felt that he had a remarkable technology that produced clean energy cheaply. Pace argued that it is Rossi who should refund the $11 million paid out by the defendants because of the lies he told them.

More accurately, they felt there was some possibility that Rossi ight have a “remarkable technology,” and they wanted to “crush the test,” to find out, not merely to depend on relatively weak inference as from, say, his past.

“Those E-Cat boxes weren’t filled with magic,” he told jurors. “They were simply filled with lies.”

That is pure polemic, designed to create an impression, and it was skillfully delivered, my opinion. Pace’s manner is not “slick lawyer.”

This is not a “fact.” It’s a sound bite,  and the jury will be looking to see if Pace can back this up with clear evidence. Nothing that Pace asserted was new. Anyone can read the case documents and find the evidence, but if anyone has questions, they may be asked here. I might even be able to pass on some questions for any party or attorney.  I will be careful and polite if I do. There is a cordial atmosphere in the trial, and there is, so far, plenty of room for more spectators or reporters.

3rd Party Defendants Johnson, JMP, and Bass (de la Barra)

Both lawyers (de la Barra and Nunez) pointed out that lawyer statements are not evidence (which the Judge had told the  jury already). I will here give the statements of the case, which is close enough to what they said.

They were largely boring, sounding like excuses, not actual defenses.

JM Products, Johnson and Bass Defense to Count IV:

FDUTPA JM Products, Johnson, and Bass deny Industrial Heat and IPH’s claim that they were engaged in a scheme to deceive Third-Party Plaintiffs. JM Products, Johnson, and Bass (i) did not participate in, and are not parties to, the License Agreement or other agreements between Plaintiffs and Defendants, (ii) do not have any interest in the outcome of the testing of the 1 MW Plant, (iii) and were not responsible for the operation or measurement of the 1 MW Plant. Furthermore, Bass did not play any role in Industrial Heat and IPH’s decision to move the 1MW Plant to Florida.

Claim (I) is false as to Johnson, because Johnson, for JMP, did participate in the Term Sheet, an agreement between the parties. Claim (ii) is possibly misleading. Johnson was (is?) President of Leonardo Corporation, and if Rossi obtains an $89 million payment, he’d be likely to benefit. There is also a problem with Claim (iii) because the Term Sheet required JMC/JMP to measure the power delivered to them. So JMP was responsible. Not Johnson personally, but he issued the invoice requests, drafted by Rossi. Johnson appears to be on the  hook for some substantial expenses. Bass, much less so. Bass participated in maintaining the illusion of an independent customer, and basically lied as instructed by Rossi. That’s how the evidence appears to me at this time. It is not clear what losses were suffered by IH as a result of Bass’s behavior. Perhaps without that, they might have pulled the plug sooner.  I think not. I think the Bass deception was without major consequence, it was basically Rossi foolishness. Bass may not end up with serious damage. I feel sorry for him.

Fabiani and USQL Defense to Count IV: FDUPTA

Fabiani and United States Quantum Leap, LLC (“USQL”) deny that they are liable to Industrial Heat and IPH for a violation of Florida’s Deceptive and Unfair Trade Practices Acts.
Fabiani and USQL assert in defense of the claim that they had no involvement in manipulating Industrial Heat and IPH into sending the E-Cat plant to Florida. Fabiani and USQL further assert in their defense that while the E-Cat plant was in Florida they did not engage in any deceptive or otherwise improper acts against Industrial Heat and IPH.

I have seen no clear evidence that Fabiani was involved in the “scheme.” It will be difficult to show that he was part of the plan, it is not clear what he knew about the “customer.”

Fabiani and USQL Defense to Count V: Breach of Contract

Fabiani and USQL deny that they failed to perform in accordance with the duties imposed by the Technical Consulting Agreement entered into with Industrial Heat. Fabiani and USQL assert that they properly performed all material terms as required under the contract with Industrial Heat. Fabiani and USQL also assert that they turned over all or substantially all data collected during the 1MW plant’s operation in Doral and any data not provided was excused by Industrial Heat’s failure to make full payment as required under the contract.

This, however, is clear in the other direction. “Substantially all” is not “all,”  and there was a breach of contract. Fabiani promised to turn over all the data, then didn’t. Murray offered to give him his final check if he turned over the data he had. It was not necessary for Fabiani to do more work, just turn over the raw files. Instead, Fabiani erased them. That data belonged to IH, as work product. As well, Fabiani apparently destroyed his email records. That might cause him to be found to be a participant in the “scheme” by helping to cover up aspects. Very Bad Idea. Nonpayment is no excuse for destroying a client’s property.

Now, it’s late and trial begins again tomorrow.

 

 

 

RvD trial day 2 (Mistrial)

See Mistrial.

Official Transcript

It had been mentioned before recessing for the day that three jurors were asking to be excused.

Before RvD began again, I watched a sentencing hearing for a woman who had pled guilty to a Medicare fraud offense. The defendant had health issues; however this was not her first offense, she did not clearly take responsibility in her statement, it was superficial. One would think that her attorney would have coached her … but many people don’t take coaching well. It takes practice to learn anything. Folks, start now, don’t wait. It can get more difficult as we get older.

Altonaga gave her the minimum sentence under the aggravated offense guidelines, almost three years, as I recall. She did recommend that the Bureau of Prisons place her in a medical facility.

Then the RvD trail opened, with results covered on the Mistrial post. Two more jurors requested to be excused. Even if one request were rejected, the jury size would be down to the minimum, and if anything happened to cause the loss of another juror in five weeks of trial, there would then be a mistral wasting a lot more time. Better to take the pill now than later. All the attorneys and Altonaga agreed. Mistrial. Jury selection to start again Friday.

RvD trial day 1

June 28, 2017

Official Transcript

Jury selection was scheduled to begin at 12:30. I arrived about 11:30. As viewed by the Judge:

On the left side, Rossi, Bernstein, Chaiken, Lukacs, Annesser.

On the right, Pace, Bell, Maugans, Darden, Vaughn, and behind them, Lomax, Mastrucci, Handleson

Along the right wall:

Nunez (Fabiani travelling)

de la Barra, Johnson, Bass

There were three people in the Gallery with cell phones. I was told they are interns working for Altonaga. Other than those and myself, the Gallery is generally empty. I’d sat down to the left (ref. judge), and was asked to move to the other side, since they would be using the left side for prospective jurors. I was also asked to remove my hat. Ouch! I knew that, simply forgot.

Altonaga came in and said two jurors had been excused for cause. Then she had all rise as the rest of the panel was admitted. (This is a display of respect for the triers of fact, it was repeated whenever jurors came in or left.)

Altonaga often smiled. She asked the jurors some general questions, answered by raising hands, then asked “How many of you are happy to be here?” Silence, and no hands. Then the entire courtroom laughed.

The attorneys and parties were introduced. Fabiani is to be back next week.

Jurors were asked if they had heard of any of the parties or  “cold fusion” or “low energy nuclear reactions” or had seen the CBS 60 Minutes program, “Cold Fusion is Hot Again.” One had heard of cold fusion.

Altonaga explained this would be a five week trial, but the Court would not meet on Monday and Tuesday of next week for the July 4 holiday.

The names of witnesses were read and jurors asked if they knew any of them. If I got them all, these were the names.

Listed by the plaintiff:

  1. Darden
  2. Vaughn
  3. Mazzarino
  4. Dameron
  5. West
  6. Wendy Carter
  7. Ampenergo (Cassarino)
  8. Childress (Boeing)
  9. Rossi
  10. Bass
  11. Fabiani
  12. Weaver
  13. Wong
  14. Penon
  15. Levi
  16. Hoistad
  17. Pace
  18. Di Giovanni

Defendants

  1. Smith
  2. Fogelman
  3. Commonwealth of Florida (Health Dept)
  4. Murray

Then Lukacs and Pace asked general and then specific jurors questions. The judge would say, “While you have the mike…” (a hand-held microphone was being passed around) and then ask some other questions. Pace seemed a bit discombobulated, going to the podium, he left his papers and pen back at the table, he frequently apologized for this or that. (This was in contrast to Lukacs, who was crisp.)

My notes say 18 jurors were stricken. It must have been more than that. 10 jurors were selected. Altonaga told the panel that if they were not selected, they were to report back to the jury pool room. She said that if any selected juror left, the marshals would lock down the courthouse and “get you before you leave!” Again, laughter.

Then, after the excused jurors left, and after jury instructions, the trial began with opening statements from Rossi (Chaiken) and IH (Pace).

From my sketchy notes, and with my comments in indented italics

Chaiken:

Dr. Andrea Rossi is the inventor of an amazing technology. Industrial Heat marketed this technology, but when it came time to pay, they did not do so. What was supposed to be worth $2 billion was now worth zero.

Marketed? IH never attempted to sell the technology to anyone. Rossi is claiming “unjust enrichment,” but the only basis for that claim is the Woodford investment, which was not a sale, it was joint investment, not in Rossi technology, but in other LENR technology or research.

Rossi obtained his PhD in Italy.

It was not a PhD, at least that is the information I have. It does entitle him to be known as “Dottore.” This is misleading as presented in the U.S.

Chaiken quoted a “leader in LENR technology,” about Rossi’s work. That was Darden, early on.

Darden was not a leader in the field, merely someone who wanted to support LENR, and who was willing to invest and gather investment. He was not specifically qualified to assess the technology.

Chaiken mentions the report of “members of the committee that awards the Nobel Prize.”

There was, apparently, only one on that committee: the late Sven Kullander. It is unclear to me what report is being mentioned, with Kullander as author. Rossi has claimed he is under consideration for a Nobel Prize, but there is no prize for the kind of work he has done.

Chaiken talks in bursts. I am considering the possible significance of that.

In May, 2015, IH sold 4% of the company for $50 million, based on showing investors the Doral Plant.

This is misleading. IH was sold to IH Holdings International, Ltd. for penny stock, which all IH shareholders (apparently) were issued. So IH became a wholly-owned subsidiary of IHHI, which then issued preferred stock to Woodford Fund, with a par value of about  $45 per share compared to $0.01 per share for ordinary stock, the kind held by Darden, Vaughn, Mazzarino, etc. I’m not completely clear on all details, but this is clear from evidence in the trial record and on the UK government web site with corporate information for IHHI. I do not know the total direct investment of IH in Rossi, $11.5 million is often mentioned, but  that is only the sum of direct payments under the License Agreement to Rossi.  A $20 million stock issue was originally authorized, so  my speculation is that they spent about  that, which seems plausible, given their roughly $5 million payments to Ampenergo (AEG) as compensation for AEG allowing transfer of the License for the territory.

The Rossi License is held by IP Holdings (IPH) Bv, entirely owned by IH. The original plan was to make that the overall holding Company. IH was assigned the license with the consent of the parties (see the First Amendment), and became liable for payments, in addition to IH. However, apparently Woodford insisted that the UK company be formed. So it was done. As I understand it, the preferred stock has the same voting power as ordinary stock. So Woodford contributed massive capital for further LENR investments, while allowing control to continue with the original investors. However, preferred stock, while it is subsidiary to debt, is first in line for distributions of profits, if any, or for distribution on liquidation after payment of debts. IHHI does not have any  liability to Rossi, that is with  IH and IPH. So if Rossi were to win a judgment, the Woodford investment cannot be touched However, IHHI may choose to pay the ongoing expenses of IH (such as legal expenses), or IHHI could stand aside and let the chips fall where they may.

This transaction did not “value” IH at $1.25 billion as implied. It established no particular value for IH or IHHI, other than as a vehicle for making investments in LENR technology and research. If any of those investments lead to commercializable technology,  that could then be “marketed,” probably through sale of sublicenses. There have apparently been no such sales.

To establish that Doral was the GPT, Penon was quoted as saying in the communications with Darden that the proposed test procedure was “pursuant” to the License Agreement, but also called Doral a “demonstration,” as well as calling himself the ERV and referring to the length of the “demonstration.”

I would greatly prefer to see a transcript than to rely on my sketchy and incomplete notes. I am working on obtaining access to the daily transcripts that are emailed to the attorneys. There may be access at a public terminal in the court.  Even if I could bring my phone into the courthouse, I could not photograph this display, nor record myself reading it. These are all prohibited activities in the courthouse.

That Penon had called himself the ERV was known. One of the documents exchanged was an exhibit to a Rossi appeal to the Magistrate (pdf page 26). This document does not contain the language Chaiken used, so it must be some other document in the exchange. On the face, since Doral was set up as a sale of power and a demonstration, the Penon protocol does not establish IH consent to the start of the GPT, as required by the defunct Second Amendment, which required the written consent of all parties. It is, at best, a vague implication. This was also not an email between IH and Rossi and is like other hints found in previously private IH correspondence. IH did think of Doral as some kind of test, in addition to a demonstration for possible investors.

There is no evidence, however, of actual investment resulting primarily from a visit to Doral. Woodford did visit at the beginning of Doral operation. The only known major investment was the Woodford investment, which had been planned since 2014, see the AEG written notes of conversations. The Woodford investment appears to have been structured to avoid dependence on or risk involving Rossi, and that investment was used to pursue  non-Rossi alternatives.

Annesser & Chaiken have a tough row to hoe, full of rocks. By cherry-picking the evidence (which is readily expected from attorneys), they may claim the path to truth is clear. I know too much to agree. Will the jury?

Some have thought that Rossi cannot introduce new evidence at trial. While that is technically true, “new evidence” does not mean “evidence that has not  been publically disclosed.” Rather, there was evidence mentioned in the Chaiken opening that was not previously public, AFAIK, but it is very likely in the documents listed in disclosures, many of which merely were listed by Bates numbers, only meaningful to the parties. There is a vast number of these, and this strategy will conceal content from the public and not put IH on notice on what specific material from those documents will be used. Unlike IH, Rossi also did not provide a document presenting and analyzing the evidence from depositions, stating they were prevented by “technical difficulties,” and would present the  document physically to the Court. (see the bottom of pdf page 1 of D.E. 325)

A some point in the proceedings the Statement of the Case was read by the Judge, which contains an outline, more or less, of what the parties stated as Opening. I did not take any notes on the IH Opening Statement, probably because the claims presented were quite familiar to me, there were no surprises. I intend to analyze the Statement document in detail, and there is some small analysis coming for Day 3.

This entire day became moot on Day 2, as too many jurors were lost, so a mistrial was declared and everything started over on Day 3.

Mistrial!

10 jurors were selected yesterday. First 3 of them requested to be excused, that was known yesterday. Pace agonized over allowing this. On the one hand … and on the other…

Pace suggested interviewing them (I.e., as in the original selection.) Altonaga said she had no questions, it was all written and clear.

Then Altonaga announced there were two more. At this point, all the lawyers agreed: mistrial.

Lawyers in court at 9 AM, Friday the 30th, to go over juror questions. Selection begins at 10 AM. If that finishes, opening statements, deja vu all over again. More when I get home, I’m sitting outside the courthouse.


I have a few minutes before leaving for the Court. Reading the LENR Forum discussions,  a few clarifications and brief comments.

The trial actually started with 10 jurors seated on the 28th. The Judge read the case summary (see the docket), then Rossi and IH presented opening arguments (Chaiken and Pace respectively). So there was a bit more than an hour in actual trial.  Then, before adjourning, the Judge noted requests from jurors to be excused due to conflicts, said that this would be addressed in the morning at 10 AM. There was some hesitancy on IH’s part to accepting the requests. Pace was really unsure, huddled with Darden. Then the Judge said there were two more requests,  and all the attorneys agreed on a mistrial. I had a chat with one of the lawyers, who pointed to the real problem: jurors were not prescreened for “five week trial.” So a lot of time was wasted interviewing jurors who weren’t ready to serve. We’ll see what happens today.

Chaiken said that jurors will see evidence from Penon. That might be the video deposition.

Practice makes perfect. Chaiken and Pace get to present their opening statements to a new jury. The jury will again be cautioned that lawyer claims are not evidence. When I get a transcript I may be handing out some Pants on Fire awards.

Shanahan’s remarks are totally off-topic, but Jed is right: Shanahan is fringe,  and keeps himself there by not actually seeking communication and agreement, merely claiming he has been unfairly rejected. Ironic, eh? I’ve been pointing out the irony for years, and have many times offered to assist Shanahan in settling issues. Yes, “random CCS” was an error. There are errors aplenty on all sides. So? There are places where a full and complete discussion can take place. I created one on Wikiversity. Shanahan ignored it. On Wikipedia, Shanahan kept attempting to put information in the Cold fusion article that did not meet Wikipedia guidelines. It was not just “CFers” who removed it, it was ordinary Wikipedia editors. An article on CF calorimetry with his ideas was deleted by JzG, a very much anti-CF administrator. I rescued it for work and  review. My reward? Shanahan supported my ban.

There is something special about actually meeting Rossi and the others. This is no longer dealing in abstractions, these are real human beings.

The document referred to as the Cassarino (Ampenergo) deposition is actually a much longer document containing all the depositions IH is planning to introduce, with annotations showing attorney objections, etc. Rossi, because of “technical difficulties,” planned to present that in person to  the Court.

Many writers (on all sides) are cherry-picking the evidence. One example is IHFB’s continued insistence that Woodford considered the Rossi technology “core” for their investment; in fact, the statement in an email has a clearer interpretation: Lamacraft was commiserating with Darden or  Vaughn (I forget which) over the disappointment, because Rossi was core to the original investment. Not the Woodford investment.

Again and again, it is asserted that IH used the Doral test to recruit investors. There was only one major investment after Doral began, and that was Woodford, and it is quite apparent that Woodford insisted on this being an investment into a UK limited liability company, which would then own Industrial Heat. Not in IPH, which had a contractual relationship with Rossi (and which was the original idea). IH did not actually use Doral to raise money, but Lamacraft wanted to see Doral, I’m sure. The Ampenergo notes (I have covered them in detail) show that Lamacraft was not particularly impressed.

And I must leave now. I have no internet access while I am in the Court, until I retrieve my phone from security and walk outside, and they would not be pleased by retrieving it for a few minutes…. I may still apply for a press pass, but until I have one …. I have limited facilities here.