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.

Author: Abd ulRahman Lomax

See http://coldfusioncommunity.net/biography-abd-ul-rahman-lomax/

5 thoughts on “RvD trial day 1”

  1. Ah, that answers one of my questions. Penon’s test was pursuant of the LA, Whereas the Final Report should have been title “Pursuant of the General Performance Test, as per the License Agreement”, but of course that would have been too explicit, and would have undoubtedly been vetoed by IH.
    Even that would be ambiguous as there were three versions of the LA, one of which remained unsigned by AEK.

    1. This seems confused. The mention of “pursuant to the License Agreement,” in the Penon negotiation of the test description, would have telegraphed more clearly to Darden that this was a set-up for a GPT, and, indeed, it’s likely that Darden would have shot it down immediately, and probably would have caused IH to refuse to retain Penon at all. Not certain, but likely. Rossi obviously avoided raising the issue, for reasons that I find obvious as well.

      There is only one license agreement. There was an amendment properly signed by all the parties. There was a second amendment, never clearly completed (no date filled in), that Ampenergo refused to sign. Rossi knew it was “cancelled,” his word. Rossi never received any agreement otherwise. The title of the Final Report matters little, if it had been agreed that the subject test was the GPT and Penon was the ERV for that test.

      Suppose the Second Amendment was valid. It was explicit about a written agreement of all the parties to the GPT start date. One of the first things I noticed about the Rossi Complaint, more than a year ago, when I assumed that the lack of Ampenergo signature to the Second Amendment was a mere technical difficulty (and also the Six Cylinder Unit issue), was that Rossi did not allege that written agreement, nor did he allege estoppel.

  2. A small point – maybe in the titles of these postings it would be better to use a search-friendly “Rossi vs Darden” instead of the opaque abbreviation “RvD”?

    1. Post titles are less important than categories assigned. You can see all our posts and pages relevant to the lawsuit using
      http://coldfusioncommunity.net/category/rossi-v-darden/.

      (There is a list of categories on the main blog page.)

      There is a specific category for daily trial reports: http://coldfusioncommunity.net/category/rossi-v-darden/rossi-v-darden-trial-reports/

      Thanks for your concern about the accessibility of material here. Sometimes I forget to categorize a page, but I’ll eventually find it by seeing that there is a page in the Uncategorized category. Wait? Isn’t that a paradox?

  3. I have added transcripts for Day 1, Day 2, and Day 3 of the trial. These are at the top of the respective trial pages. I hope to obtain Day 4 (which will be very brief!).

    Day 1 shows jury selection and then opening statements by Chaiken and Pace.
    Day 2, a mistrial was declared
    Day 3, A larger jury was selected and there were opening statements by all parties. (Cbaiken and Pace, as I recall, both substantially changed tbeir opening statements. Perhaps practice makes perfect.

    and Day 4, before anything else substantial happened, the parties started negotiating (privately, with the Court waiting) or discussing and a settlement was declared.)

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