RvD: The Murray deposition

We have the entire Murray deposition, put up by Rossi as 215-03

These are notes from the deposition with my comments. The page numbers are links to the deposition page (the deposition page + 1 is the PDF page).

The first part of the deposition covers the issue of Murray’s background, and, as well, Industrial Heat’s other research. That is worthy of special attention; what is odd to me is that Rossi published the entire deposition, while Industrial Heat had it marked as Highly Confidential, and reasons for that are obvious: it could affect IH relationships with other LENR researchers, could affect the reputations of those researchers, and could damage IH relations with future researchers and inventors.

As someone highly interested in LENR, I find those matters of high interest, and will be following up on this in private conversations with the LENR community, which includes people presently or in the past associated with Industrial Heat. I do not expect to be able to publish the content of those conversations, I expect at least some of them to be embargoed. However, the LENR community needs grease, a different kind of grease than Rossi Grease.

153 On COP going up when input goes down

15· · · · Q.· · Okay.· So you’re not stating that the fact
16· ·that it was running on 37 percent of the reactors is
17· ·proof that this thing doesn’t work, are you?
18· · · · A.· · No.
19· · · · Q.· · All right.
20· · · · A.· · I’m saying that the behavior of the power in
21· ·the diagram that comes up a little bit later on, or
22· ·maybe it was before, when reactors went offline and the
23· ·COP went up is very unusual, that they would be
24· ·inversely, inversely related.

This, then, shows how the Wong report misrepresents Murray’s comment. The behavior is in a particular context, and Murray is not claiming this as a proof of non-operation. Murray is an engineer, with high experience, that’s totally obvious. He has actually worked with a megawatt power system (though he’s careful to explain that is peak power, not routine sustained power). He’s had to deal with dissipating a megawatt.)

If reactors are taken off-line and COP goes up, that would not be surprising if the reactors taken off-line were simply dissipating power, not adding to power output. So an engineer would be curious, and would investigate. Penon apparently did not answer Murray’s formal, written questions because, allegedly, he already answered them in February, 2015. But that was verbal, with no record of his answers. This was not the behavior of an experienced expert engineer, being paid to issue an “Expert” report, when asked to put his comments in writing. This is the behavior of someone hiding something, afraid of something.

COP depressed because reactors are not generating heating power would be a sign of a poor control system. A sane control system would be monitoring the output of each reactor, and adjusting input parameters accordingly, and would not allow the “dead weight” to continue more than a little.

154-16 “The contract.”

Annesser is not questioning about references to test or contract, but attempting to put the words “Guaranteed Performance Test,” or equivalent, into Murray’s mouth. It’s clear from evidence that IH did consider that some kind of test was going on in Doral. This was aside from, or additional to, the represented purpose, a sale of power and demonstration for investors.

Darden had, from evidence, told Rossi that even though the formal GPT clause had failed, they were still willing to pay for what they needed: the ability to make reactors that worked, independently, having been fully guided for this purpose, and Doral was an opportunity for Rossi to make a demonstration, showing that reactors worked. But it was not set up with appropriate monitoring and independence to serve for that purpose.

It’s reasonably clear that Darden did not, by allowing the Penon test plan we have seen — which was clearly inadequate for a genuine GPT on which $89 million would hinge — thereby approve a GPT, but only some kind of test. Had Rossi allowed full inspection and had Rossi allowed full instrumentation — even for a much shorter period — and if the Plant then continued to show high COP (even if smaller than 6.0), it would have been possible for IH to justify raising the money and paying Rossi what he wanted.

But Rossi did not allow that to happen. Annesser is grasping at straws, unintended meanings of words in emails, not actually consistent with evidence (i.e., we know that the Second Amendment failed, and Rossi knew that. If Rossi wanted a clear agreement to take its place, he could have proposed it; instead he created piles of “vague,” a Rossi specialty. Rossi put in a year of work, claimed to have risked his health, without having any clear agreement behind it, but only fuzzy thinking. He lied to IH, repeatedly and obviously — this will not escape the notice of the jury — and then his case depends on Rossi Says.

A&C are claiming that IH had no intention to pay, which is extensively contradicted by the evidence. What they have is that IH clearly considered the Second Amendment dead, which it obviously was, there is no reasonable doubt about that, and that therefore they could not be forced to pay, but could still pay if convinced that further investment was sound. This is translated by A&C to “no intention to pay.”

If Rossi was told by his lawyer (presumably Annesser) that the IH signature on the Second Amendment created a valid contract without the signature for Ampenergo, he would have grounds for legal malpractice, very expensive legal malpractice, because this is not at all in doubt.

There are conditions where the subsequent conduct of the parties can create an imputed contract, but it will be governed, not by the specific language of that failed amendment, but by the conduct itself. Any sane and ethical lawyer would advise the client to get it in writing, not to try to work around it with vague resemblances. If there were an agreement in writing, or clear evidence for an oral agreement, the possibility rises of estoppel against claiming “no agreement,” but an oral agreement could still runs into the Statute of Frauds, because this could be an agreement to be performed in more than a year (likely). (say it’s only a 350-day test, i.e., the reactor runs perfectly for the whole year, allow ten days for the report to be prepared and filed, and five days to pay on receipt of the report, that’s up to a year.)

This questioning was not about Murray’s expert experience, but about a legal issue that Murray has no real knowledge on. However, Murray could have been a witness to some kind of acknowledgement of “Guaranteed Performance Test,” but apparently has no specific knowledge, on some vague knowledge of a contract of some kind, it’s unclear what. It could be the Term Sheet, and it could be the original GPT, but translated into a voluntary relationship. Annesser does not, here ask the very specific questions to determine this.

For ordinary testing purposes, and to keep Rossi sweet, as it’s been called, IH could agree to Penon as an engineer responsible for validation, and, in general, A&C use “ERV,” because this then makes it appear to be part of a GPT process, and they use GPT to refer to Doral, as if that has been shown, and they then ask leading questions incorporating the assumptions. There is no doubt, from the test plan we have seen, that Penon was asserted as an ERV. There is no doubt that the plan gave a time duration matching the GPT. But there are other discrepancies, such as the time expiration; the original timing assumed that the Plant was ready to go as a commercial megawatt power plant and it had allegedly been tested. So it should have been “hook it up to a large radiator or a collection of small ones and fire it up.” I haven’t seen clear evidence on this (though it may be buried in the pile somewhere) but it appears that Rossi wanted, instead, to work on “improvements.” It appears that IH proposed an installation with a real customer, and Rossi rejected that because the Florida “customer” would be much more “convincing.” Yeah, right. That was where he was deceiving IH as to Johnson Matthey’s involvement, and that, again, will be totally obvious to a jury, if Jones Day is careful how they present their case.

(They have an embarrassment of evidence, way too much story to tell, whereas the jury will need a clear and simple story to follow, as simple as possible. This is where high-priced lawyers earn those fees. This can take high skill, even if the evidence is reasonably clear. Evidence does not “speak for itself,” I’ve read that trope dismantled by legal experts. Evidence will be read in a context, the mindset of the reader, and what the evidence “says” is then derived according to that mindset.)

Murray does not fall for the Annesser gambit, he explicitly denies that his comment about a test was about the “Guaranteed Performance Test.”

156-11: Consultant and advisor or ERV?

Annesser is creating room for doubt. Basically, IH probably did not tell Rossi, early on, that they had not agreed to Penon as “ERV” for a “Guaranteed Performance Test,” though they also did not object, apparently, when Penon referred to himself as ERV and to a test of 350 or 400 days. Rossi makes much of this in his own arguments, that they didn’t tell him. However, they didn’t tell him, in writing, what they could infer that he obviously knew: the Second Amendment had failed (“cancelled” was Rossi’s word for it), so the original GPT failed because not timely performed, and this was obvious since the test was not begun in 2013, unless IH formally waived the requirement. (If IH waived the requirement without Ampenergo consent, they’d have an issue to work out with Ampernergo, probably by paying them anyway).

IH knew that Rossi was hair-trigger. Annesser, above, even uses that, claiming that an otherwise normally reasonable requiest, allowed under the Term Sheet, was an attempt to provoke Rossi. I.e., Annesser is looking for blame, instead of fact. In this ERV discussion, he’s asking a leading question (And Lomax — no relation — properly objects.) Annesser is grandstanding, though we could also say that he’s fishing for wabbits. Murray doesn’t give him one, only the mouse of “probably they didn’t tell him.”

Of course, they wouldn’t tell him! Until it became necessary! It had become necessary for IH to have a fully-competent and highly-experience engineer inspect the Plant. So they would take the risk of irritating Rossi. Rossi, in fact, responded in a way that sealed it for them: they could not approve of this “test.” No matter what the “ERV” wrote; as it developed, the monitoring was not only inadequate on general principles, it did not follow the written test plan (though I don’t yet find that completely clear).

The Term Sheet provided a supposedly independent check on power, i.e., the customer was to monitor power delivered and report this to IH. However … this apparently depended only on Rossi reports of the number of operating reactors, not actual power, instead, nominal power, and then the Penon report depended on data provided by Rossi. It was all Rossi Says. For IH to allow this as a Rossi idea, letting Rossi do what he wanted to do, as far as what he openly disclosed, not much problem, only a little expensive. To allow this mess as an $89 million “GPT”? Preposterous. Rossi had tossed them a carrot, $1000 a day for power. They didn’t care about that, it’s obvious. Chicken feed.

What Annesser suggests might have been told to Rossi was not even true. They were not contesting Penon as an ERV, but as the ERV for a GPT. They were paying, I understand, a share of the Penon consulting fee, not as “ERV” for a “GPT” but as a consultant to “LI,” i.e., Leonardo Corporation but probably thinking “Leonardo, Inc.”

159-20: Flow meter below minimum rated flow

·3· · · · Q.· · I’m sorry.· The minimum flow rate was above
·4· ·the average flow reported by Dr. Penon, you conclude
·5· ·that all of the volume flow rate sensor measurements are
·6· ·invalid?
·7· · · · A.· · That’s correct.
·8· · · · Q.· · What happens when you fall below the minimum
·9· ·flow rate?
10· · · · A.· · These devices are designed to operate with a
11· ·full, completely full pipe.· And they’re actually
12· ·designed to have a valve on both sides of them.· And
13· ·when the flow meters operate below that, you can get
14· ·inconsistent results.· For example, you can actually
15· ·have just a very minor amount of water in the channel,
16· ·and it can turn the turbine wheel to indicate a much,
17· ·much higher volume.
18· · · · · · · So this particular meter was actually
19· ·designed for a flow rate, a nominal average flow rate of
20· ·about 40 meters cubed per hour, but it was operated
21· ·below its minimum point.· So you can’t make a valid
22· ·measurement when it’s operated below the minimum point.
23· · · · Q.· · Okay.· Let’s talk about this for just a
24· ·minute.· To begin, when it is operating within its
25· ·minimum and maximum flow rate, this, this meter, what is
·1· ·the margin of error?
·2· · · · A.· · The, these devices, it’s, it depends upon if
·3· ·you’re in the transitional region or you’re above it.
·4· ·You, I would have to look at the type certification from
·5· ·the manufacturer to know.
·6· · · · Q.· · But you don’t know sitting here today for
·7· ·this particular device?
·8· · · · A.· · No.
·9· · · · Q.· · Okay.· Now, if you operate outside, is it
10· ·your understanding that the margin of error increases?
11· · · · A.· · Yes.

Annesser wants Murray to say he can’t say that the Penon data is “wrong.” And, of course, he can’t say that. What he did was to point out that it was unreliable. In addition, he doesn’t mention this, but by using the flow meter well below the expected average flow, accuracy was lost, this was in addition to error cause by flow being below rating. It seems that this meter has dials indicating higher resolution for flow than what is immediately visible. These were, apparently, not used. This all led to very fuzzy flow numbers, not showing normal variation, thus increasing suspicion that something is in error. Not proof. But an ERV report for a formal Performance Test, one would expect, would be as close to proof as possible. Not merely sorta-kinda-coulda.

There is another reason for considering that the Penon data was somehow terribly in error, what I have called the “room calorimeter.” A running megawatt reactor will heat the space containing it. One way to confirm the heat would have been, in fact, to run a calibrated heat exchanger, with measured air flow and measured air temperature rise. And this would have been part of a JMP system for measuring delivered power. While Rossi has of late claimed there was a heat exchanger, there was no claimed monitoring of it.

12· · · · Q.· · Okay.· Did you ever do any testing on the
13· ·actual flow meter that was used for the Doral facility
14· ·350-day test, what we’re calling the guaranteed
15· ·performance test?
16· · · · A.· · The —
17· · · · · · · MR. LOMAX:· Objection to the form of the
18· · · ·question.
19· · · · · · · MR. ANNESSER:· What’s the objection?
20· · · · · · · MR. LOMAX:· To the extent that it gets into
21· · · ·any kind of attorney work product or attorney-client
22· · · ·privileged information.
23· · · · Q.· · Okay.· Go ahead and answer, sir.
24· · · · A.· · Repeat the question.
25· · · · Q.· · Did you do any testing on the actual flow
·1· ·meter used during the guaranteed performance test?
·2· · · · A.· · No.· That flow meter was taken by Mr. Penon
·3· ·back to Italy —
·4· · · · Q.· · Okay.
·5· · · · A.· · — at the end of the test.· I took pictures
·6· ·of it and collected data on what it was.

When an attorney first saw that the instruments had been taken by Penon, he made a one-word comment. Spoliation. This was compounded, later, by Rossi removing the piping (making it impossible to measure pipe slope and to verify details of piping around the flow meter, and then the claimed heat exchanger, making it impossible to confirm its existence, given a complete lack of photos of it, or other testimony as to its existence, even though aspects of that existence would have been obvious. And then Penon destroyed his raw data. Penon, rather obviously, did not provide raw data in his Report. His figure for pressure was likely not what was a provided to him, the pressure gauge readings, and those were, themselves, recorded with extremely poor precision (like the temperature readings). He converted absolute readings to barg, apparently, while retaining the label “bar,” which was preposterous.

This was an engineering nightmare. Fiabiani refused to provide the raw data, and that had to have been deliberate. He promised to provide a “report,” but he was not actually obligated to provide a report, that was his excuse for not turning over a copy of the raw data. Then he claims to have erased it all. This was either deliberate spoliation or terminal ignorance; and in any case, it made it far more difficult for IH to review the data and determine if it might be defective. That is spoliation in effect even if not deliberately. Apparently, though, Fabiani was warned, and decided to cast his lot with Rossi rather than with his contractual obligations.

·7· · · · Q.· · Okay.· I’d like to ask you to turn to Page 9
·8· ·of 39 of Exhibit 7.
·9· · · · A.· · Uh-huh.
10· · · · Q.· · And you continue to discuss the flow meter
11· ·here I believe.· And the last sentence of the paragraph
12· ·on this page states, “In addition, we have estimated
13· ·that the visible portion of the pipe has about five
14· ·elbows and one DN40 valve.”
15· · · · A.· · Uh-huh.
16· · · · Q.· · What are elbows?
17· · · · A.· · Elbows are pipe elbows.· So right angle or
18· ·45-degree angle turns in a pipe.
19· · · · Q.· · Okay.· Where were those elbows that you
20· ·were —
21· · · · A.· · On the inside of the container on the steam
22· ·side.
23· · · · Q.· · On the steam side, okay.
24· · · · A.· · Yeah.
25· · · · Q.· · How do you know what the inside looked like?
·1· · · · A.· · Because at the end of the test you and I and
·2· ·everybody else there had an opportunity to walk through
·3· ·and take pictures of and inspect everything on the
·4· ·inside of the container.
·5· · · · Q.· · On the steam, on the — I’m sorry.
·6· · · · A.· · I’m saying on the reactor.
·7· · · · Q.· · Okay.
·8· · · · A.· · It should be located —
·9· · · · Q.· · On the reactor?
10· · · · A.· · Yeah.· Near —
11· · · · Q.· · Okay.
12· · · · A.· · — the BF units at the back of the reactor,
13· ·all of the pipes coming off were what I believe are
14· ·DN40, 40-millimeter pipes.· I actually have a picture of
15· ·a pipe joint that actually flags it as a DN40.
16· · · · Q.· · Okay.· And those feed into a larger pipe,
17· ·correct?
18· · · · A.· · They feed into a main, and then the main goes
19· ·across to the Johnson Matthey facility.
20· · · · Q.· · Okay.· So, okay.· So here you’re talking
21· ·about the steam flow —
22· · · · A.· · Yeah.· We’re talking —
23· · · · Q.· · — that was —
24· · · · A.· · Yeah.
25· · · · Q.· · Okay.

Looks like Annesser was thinking of the elbows being in the Customer area or on the return side.

Notice that Murray says “Johnson Matthey facility.” He had been told, I’m sure, that the “real customer” was Johnson Matthey, which is what Rossi, at the same time as saying “our customer is JM Chemicals, Inc,” a Florida corporation, led IH to believe was the real customer behind JM products, the owner concealed by the corporation shell operated by Johnson. Johnson’s OFAC declaration that the owner was a “U.K. entity” was obviously designed to continue this deception. As we now know for sure, there was no “U.K. entity.” It was allegedly a plan, and stating a plan in a declaration like that is a lie.

Annesser doesn’t seem to notice the mention of what was known to as “JM” in the early negotiations.