“Affirmative Defense 2
“Finally, Counter-Defendants at all times had the opportunity to, and did if fact participate in, the establishment of test protocols, the selection of independent third party evaluators, as well as the selection of the location for the Guaranteed Performance Test. Counter-Defendants at all times knew that the Guaranteed Performance Test would take approximately one year to perform at a substantial commitment of time, expense and effort on the part of many persons, including Plaintiff Rossi. Further, despite having their own subject matter expert, engineer T. Barker Dameron, review the testing protocols, measurements and results during the course of the yearlong test, Mr. Dameron was instructed by Defendant Darden not to discuss any perceived problems or deficiencies with Dr. Rossi.”
This implies Darden wanted the test to fail … they would complain only at the end of the test, when it was too late to correct anything.
This interpretation accepts that IH considered the Doral installation a GPT. It also appears to accept the Rossi story, which is certainly not accurate. “The selection of third party evaluators,” for example, (plural?) in the light of Rossi refusal to allow independent experts to observe the Validation Test, is hollow. Yes, if the subject of the GPT were raised, IH would know it would involve a year, by definition (unless IH were to waive it). Was it raised? The only evidence that has come to light that it was, was the proposed protocol. We do not have the response of Darden. The GPT, by the Second Amendment, required *explicit written consent.”
Now, let’s assume that Rossi knows about the instruction to T. Barker Dameron from an email provided in discovery. We do not know and Rossi does not inform us of when this instruction was given, except that it was “during the yearlong test.” By July, 2015, communication with Rossi had broken down, IH had retained a new engineer, but Rossi refused to meet with him, and is now claiming suspicion of his motives, in a claim that essentially confirms, if sincere, that Rossi was hiding something that would not otherwise be known to IH and its engineer, Murray. IH apparently turned all communication with Rossi, withi Penon, and with Fabiani to Murray (Fabiani was writing to Vaughn, after the test ended in February, but Murray responded.)
Somewhere along then, IH knew that legal action was possible, and they were informing Rossi, by early December 2015 (which is still “during the course of the yearlong test”) that they did not consider the test a GPT, nor Penon an ERV.
It is difficult for me to infer from the evidence and context here that Darden “wanted the test to fail.” How would asking Dameron to turn over all communication to Murray cause a test failure, if the test procedures were proper?
What I do consider possible is that they realized, at some point, that JM Chemical Products was fake and that there was no manufacturing going on. They knew that they could not make the same devices as being used in the Doral Plant work. So they concluded, as they say in the counterclaims, that either Rossi had not disclosed all the necessary information, or it was all fraudulent. Instead of openly confronting this — creating a huge mess — they elected to wait and see. I do not know the specific timing, only that the exclusion of Murray was a huge red flag. Some, at that point, would have sued Rossi immediately. However, if Rossi did have a real technology, and was merely being paranoid, a common theory about Rossi behavior, then this would seal that he would not reveal the secret. Maybe he would reveal it, maybe even accidentally.
The idea that they would want a test to fail that, if it succeeded, could be worth a trillion dollars to them is just plain crazy. What is more possible is that they were giving Rossi rope to hang himself with. It looks like that is what Rossi chose to do.