They don’t get it or don’t care?

05/22/2017 0309.0_Rossi_Motion for Additional Discovery re Murray and requesting new Rossi expert

Rereading the relevant Order, it seems that Rossi and counsel don’t get it.

The Judge ruled that they were responsible for the problem with Murray’s expert qualifications, by delay, but tossed them a bone, i.e., Altonaga required that IH provide the necessary documents. It was not her intention to provide an endless regress. I consider it somewhat possible that she will allow them to depose Murray again, or engage in some form of discovery, but next to impossible that she will allow them to introduce a new expert, expert report, and then what? More depositions, discovery by IH, and yet more motions?

I don’t think so.

IH, responding to the Rossi appeal of the Magistrate’s ruling on the Zalli document privilege, has moved for sanctions, due to the additional cost of litigation caused by repeated Rossi cantankerousness (and blatant, deliberate, in-your-face Chaiken violation of the Protective Order). I would guess that Altonaga will herself look at the Zalli document, and unless she sees a smoking gun (i.e., justification for lifting the attorney-client privilege), she will throw the book at Rossi counsel.

The Judge took about two hours to Order denial:

05/22/2017 0310.0 ORDER (no doc) denying 309 Motion for Leave to File. Plaintiffs, somewhat inexplicably, continue to overlook and violate the deadline for filing pretrial motions, which has long since passed. Further, Plaintiffs continually fail to comply with the conferral requirements of the Local Rules. Future non-compliance will result in the imposition of sanctions. Signed by Judge Cecilia M. Altonaga (CMA)

I don’t find it inexplicable, but if the Judge figures out what is going on, Rossi’s case may be toast. Indeed, what would be unfortunate is if she over-reacts, creating an appealable error. She really  bent over backwards to be fair to Rossi. She will be faced today with an IH request for sanctions over Chaiken’s blatant violation of the Protective Order, in the Darden deposition, where he showed Darden a copy of the Zalli email, accidentally disclosed and “clawed back,” according to procedure, supposedly turned back over and destroyed, no copy kept. And he was deliberately defiant, “I’m doing this to make you object.” That’s along with Yet Another Appeal by Rossi from what was clearly decided multiple times on that email. Yes, Rossi has the technical right to appeal. That doesn’t make it wise.

THHuxley wrote:

you wonder whether all this is Annesser (who must know the score?) pushed by Rossi into doing something, or whether Annesser has some deep game plan like store up things for Appeal.

The motion was signed by Chaiken. The provocative violation of the Protective Order was by Chaiken.

Annesser & Chaiken, the firm might be called Birds of a Feather, given Annesser’s provocations, his saber-rattling letter at the end of 2015. A good attorney will never throw gas on the flames like that. That’s what an amateur or noob might do, to prove he is tough. But we imagined that Chaiken would be the adult supervision. Apparently not.

I suspect that PBY&A kicked them out. We will probably never know, attorneys don’t talk about issues like this. Ethics. It’s an aspect of attorney-client privilege.

Eric Walker wrote:

… Does anyone know how long Annesser has been practicing law? It could be that he’s still learning on the job.

Not long. The late Ruth Silver’s web page is still up. Annesser joined the firm in 2012. Linkedin shows him as an intern until 2012.

From the Wayback Machine: Chaiken.

Brian W. Chaiken is a partner at PBY&A. He has about 20 years of extensive litigation and transactional experience. He has helped companies work through a wide variety of legal and business issues, including entity formation, corporate finance, SEC reporting, employment law, corporate management, and intellectual property matters. Previously, Mr. Chaiken was general counsel and CFO for a publicly traded agricultural company, as well as general counsel for a South Florida-based telecommunications company with operations in Costa Rica and the Dominican Republic. He has worked with domestic and foreign regulatory bodies, as well as boards of directors and other external experts/professionals.

I’m not seeing substantial expertise (“intellectual property” might seem related, but not necessarily), but rather long experience. He ought to be seasoned. However, maybe Rossi has him hypnotized. Kullander and Essen should have known better, too!

Zeus46 wrote:

Which of Rossi’s lawyers filed a ‘motion to quit the case’ ? Was it allowed or still to be ruled on?

Ah, these users who dismissed CFC as some sort of useless appendage, my private echo chamber, who don’t simply look at Rossi v. Darden docket and case files.

05/09/2017 0292.0_PBY-A_for_Rossi_withdrawal
== 292-01 – Proposed order
05/09/2017 0293.0_Order Motion 292 granted, PBY&A relieved.

Contrary to what some thought at the time, there wasn’t an accusation of misbehavior alleged, there was merely reference to the rules (which allow a series of reasons).

Dewey Weaver wrote:

Those swivel-heads surely don’t know when to stay low. Of all days, they chose 5/22 & 5/23 to piss off the Judge – Itailianlawyer must be advising them.

I suspect they would rather piss off the Judge than their client. That deposition behavior took the cake.

The rules are clear about the Protective Order. Return or destroy if clawback is requested. It’s all obvious, sensible. It’s based on lawyers trusting each other to follow the rules. That seems to be missing with Annesser and Chaiken, and it was visible previously with Annesser.

Chaiken may think he has a “reason” for violating the order, but there is a prescribed remedy for handling that, it would be going to the Magistrate and obtaining an order to compel. In fact, Chaiken was attempting to intimidate Darden with the document, I’d think. Altonaga will see this today, we expect.

Even if Chaiken was correct, if the email showed criminal behavior, how he handled it was highly offensive.

Author: Abd ulRahman Lomax


11 thoughts on “They don’t get it or don’t care?”

    1. Thanks, Alain. Getting older is really fun compared to the alternative. So far, at least! Some people, though, get more and more rigid and whatever character defects existed when they were younger become more pronounced. Some notice this and move on, some don’t, they just become more and more certain of themselves, no matter how strong the evidence becomes.

  1. While the keys are rattling,
    I thought it was really funny a few days ago when I was reading up on a few documents referred to here, (not this particular thread though. I think it was a document on Rossi’s deposition to the court. Sorry, no link)
    When asked questions about where he got the parts for the recently revealed 1-megawatt heat exchanger he said was secretly secluded away in the attic, and who built it, he said he paid some unknown chippies he got off the street and some un-remembered welding guys to come in and build it up for him, from plans he drew up but has since discarded. (and why not? How often would you need plans for a 1-megawatt heat exchanger to fit in an attic ?)
    Ha ha haaarrr,..! Really?! The world’s most top secret technology which he closely guards and rejects almost everyone from seeing it, even representatives of IH. And yet he gets in some unknown yobos off the street to spend a few days wacking up a pipe array in a wooden box to suck up a megawatt of energy from his amazingly secret invention.
    That’s rich! I hope he gets to tell that one to the jury.

    You’ve gotta admit, Andrea can be a barrel of laughs when he tries hard.

    And the fans he used to blow away the 1 megawatt of energy; as soon as the test was ended he dismantled the fans and re-purposed them to cool down another experiment he was working on. It’s hard to imagine what that might be though, because all we have heard of on his blog, is his more amazing 20 watt Quackecat X. Nothing else which he has reported on.
    And no, I don’t believe for a second that he would be working on something without reporting it to his loyal followers.
    Gee! How could they be expected to come up with a name for it if they hadn’t even heard about it?
    But then the Quackecat X only produces 20 watts of heat so it’s hard to think why he would need fans capable of dissipating one whole megawatt in testing that.
    Hmm,. something stinks in the state of Florida. Could it be another truckload of unmitigated carp?
    Although, Miami typically has temperatures around 30 degrees C, so I suppose he might have used the fans to blow air over his magnificent team to keep them cool. That could require urgent action if the team was suffering heat-related stress.
    What a guy eh? Prepared to put his whole court case in jeopardy by removing critical evidence which would support his case, just to keep his magnificent team comfortable.

    Oh well, enough frivolity for one day.

    1. And to win many millions of dollars, he could have operated one small reactor, say 20 KW, with a COP of, say, 6, he could have cooked his grams of platinum sponge with it, and had very little trouble with dissipating the heat. There was no requirement for a “megawatt” in the GPT, it was one of the signs that Rossi wrote it, at least in round outlines, and that IH was “whatever, Andrea” about it. I’m pretty sure that they looked at it and said, “WTF? But it will be okay, this will be a test in our facility, we can sic piles of experts on it, etc.” And then the Second Amendment was safe because they still had those protections. But Rossi sold them something else, or … I think they were quite suspicious, but did not imagine he would claim that the Doral plant was the GPT, since he knew it had been “cancelled,” and there is no mention of GPT until some time around the half-way mark, and then IH did start to challenge it.

      The task of Jones Day is to present all this so cleanly and clearly that the jury cannot fail to get it. I think they failed in this before Altonaga, in their MSJ, failing to clearly point out and distinguish what was genuine dispute from empty claim. Maybe they expected her to do more research, but, just like a jury, she needed to be led by the hand, carefully. (I still have not completed my examination of the MSJ evidence, it’s a lot of work, so what I’m writing here is impression, not quantitative review, with special attention to the MSJ on Complaint Count I.)

      1. I too was not impressed with Jones Day in their pleadings, at least from the several depositions I read. For one, they did not seem to have a very good grasp on the technicalities themselves, even the very basic scientific ones. I also saw a lot of hesitation in their questions, which kind of supported the impression they were not very knowledgeable.

        I am not talking about being expert witnesses themselves, but in an $89 million dollar lawsuit, one would think that one of the largest firms in the US would be able to provide attorneys that understood basic thermodynamics and basic science.

        I am a little uncomfortable, that during the trial, if they cannot clearly state the evidence with confidence and certainty, that a jury could be swayed the other way.

        Truthfully, I find it hard to believe that Jones Day was unable to get the spoliation argument across. It seemed black and white to me. But then again, I am not a legal expert.

  2. Re: the ‘Order’ linked to above, on page 17-19
    I’m very surprised that Wong claims in his 3rd and 4th opinions the Doral facility would be a safe working environment if there was a heat exchanger on the mezzanine floor of the facility, but probably not safe if there was no heat exchanger.
    A heat exchanger still leaves all the 1 megawatt of heat inside the factory. It only removes it from the Rossi magic box, not the building.
    To then claim that the building would be made safe by the megawatt of heat safely drifting out the ceiling vents or out a window is beyond belief.
    If a fan was to blow cooling air directly over a heat exchanger and then be funneled out a window it could probably be achieved, but this would be very obvious from outside the building. Lots of noise and a heat plume. Listen to the noise a large air conditioning fan makes outside a shopping centre. They are not disposing of anywhere near a megawatt.
    If the heated air from the heat exchanger was dumped into the second floor airspace, it would be thus diluted with cooler air and require an even greater volume of air to be blown out of a ceiling vent or an open window. Again, lots of noise and a heat plume, plus an equal volume of air would have to be rushing into the building through some other open aperture, like the front door. Did anyone notice when they opened the front door to enter the building, they were driven in by a hurricane of air behind them? If they didn’t then there was probably nothing being blown out anywhere else.
    Unless of course, air heated by a nuclear process behaves differently to air heated by any other process. And why not? Apparently heat generated by a nuclear process must be different from heat generated by any other means because that was one of the objections the plaintiffs (Rossi) had to Rick Smith’s qualifications. He wasn’t an expert in nuclear processes. (page 11 linked to above in ‘Order’)

    1. Well, the claimed fans would vent 1MW through the claimed open windows from the 14m^3/s flowrate if the exhaust air was around 100C. So it is in the ballpark of correct, though the outgoing air unreasonably (and impossibly, given teh water temperature) hot. The air velocity depends on the area of the exit. Wong said it was 4m^2 (all the windows). That would lead to 3.5m/s. One window pane – as google streetview might not rule out, if you are very argumentative, this goes up to 14m/s, a very high speed noticeable jet of hot air.

      Lots of that from Rossi’s side.

      You could argue they only need to vent 800kW, say, to keep factory temps tolerable.
      The real issue, allowing these implausible hot air jets, is that the heat exchanger as described by Rossi from Wong does not work…

      1. The thing about heat exchangers is, they don’t vent air at anywhere near the same temperature as the pipes they are cooling. Air does not come off a car radiator at 95 degrees C It comes off at about 50 to 60 degrees C. And the car heat exchanger (radiator) is very much more elaborate and effective than Mr Rossi’s collection of pipes in a wooden box.
        From the design he has explained in his deposition, the temperature of the exiting air would probably be around 45 degrees C maximum, given an input temperature of 30 degrees C. (Florida)
        Bare pipes are a really inefficient and ineffective method to rapidly transfer heat to the surrounding air, unless there are hundreds of meters of them. That’s why you can run bare copper pipes from your water heater outside the house to the bathroom 20 meters away inside the house and still get really hot water out of the bathroom taps.
        After twenty meters of pipe, you will only lose 5 to 10 degrees C at quite low flow rates, depending on outside temperature. If you increase the flow rate, the temperature loss drops. If you increase the flow rate to the level required to transfer 1 megawatt of heat energy, the energy transferred from the pipes would be minimal. The air blowing through the box would remain close to the ambient temperature. That is why real heat exchangers have an elaborate array of cooling fins in direct contact with the pipes, making a very large effective area of contact between the fluid in the pipes and the cooling air blowing over it.
        The whole design as described by our genius inventor is laughable and I really do hope this point receives some attention during the court case.

        1. Yes. What is so annoying is that again and again we get this stuff which when looked at as a whole is technically laughable. Yes, we cannot be sure that a Jury will see it that way, as no doubt Rossi is counting on. Still, Rossi is on a pretty sticky wicket in Court with proper cross-examination and enough formality that evasions of the truth can be recorded and remarked.

    2. Rossi again and again emphasized that Penon was a nuclear engineer. So, smarty-pants, what makes you think that nuclear heat would be the same as heat from other origins? That will be a fun question to ask the experts, even though we don’t really need to be an expert in anything to answer it.

      Nuclear energy is indeed different, and that comment about the Rossi device allegedly violating conservation of energy was unfortunate, because it would not. If it worked. And if there is no radioactivity, a special case, which applies, because it is claimed there is no radiation, I don’t really need to say that it would be the same, and it takes no “nuclear physics” to understand the heat exchanger in a fission reactor; though there are some special considerations for safety, only to deal with radioactive products, and the same with a fusion reactor, like ITER, the neutrons deposit energy in the reactor materials, but once it’s heat, heat is heat is heat. Is heat.

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