It did. Yesterday, IH revealed a Rossi objection to a Discovery Request where Rossi objected to a request for communication records:
REQUEST NO. 4: All Communications between You and Giuseppe Levi, Evelyn Foschi, Torbjorn Hartman, Bo Hoistad, Roland Pettersson, Lars Tegner and/or Hanno Essen.
It included this:
ANSWER: … It is clear from this request that Defendants seek only to harass and intimidate Plaintiffs through this request as Defendants know that some, or all, of the above individuals participate in the nomination process for the Nobel Prize and their involvement in this matter could jeopardize any consideration Plaintiffs may be receiving for such nomination.
Never mind that none of those people are members of the Royal Swedish Academy of Sciences, which votes on the Nobel Prizes, nor that the disclosure of correspondence with them would have any effect on Rossi’s potential, never mind that Rossi is an engineer, not a scientist, and didn’t discover anything as to basic science (NiH reactions were suspected or shown before his claims), and never mind that Rossi has not shared his discoveries with the world as yet, and if he does, and if they are real, it would completely wipe out whatever oppobrium might settle on him from disclosure, and never mind that if he wanted to avoid this, filing the lawsuit would be, ah, counterproductive. People who live in glass houses shouldn’t throw stones. One might think.
But today he topped himself. He filed a motion for Rule 11 sanctions against the Defendants. Okay, that might not seem so obviously stupid. Perhaps it takes a bit of understanding to get the joke.
From the Motion, this part is real, and I am adding links to cases where I find them:
MEMORANDUM OF LAW I. Rule 11 Penalizes Parties and Counsel Who Advance Factual Contentions That Have No Evidentiary Support Formed Without Reasonable Inquiry. Rule 11(b) of the Federal Rules of Civil Procedure states, in pertinent part, that:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and]
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery….
Fed. R. Civ. P. 11(b) (emphasis supplied).
Rule 11 requires district courts to sanction attorneys and the parties they represent when they prosecute baseless claims. Pelletier v. Zweifel, 921 F.2d 1465, 1469 (11th Cir. 1991). Rule 11 imposes an affirmative duty on counsel to make “some pre-filing inquiry into both the facts and the law” so that counsel can be in a position to certify that a complaint is well grounded in both fact and law. See Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996); Access 4 All, Inc. v. Casa Marina Owner, LLC, 458 F.Supp.2d 1359, 1364 (S.D. Fla. 2006); Universal Communication Systems, Inc. v. Turner Broadcasting System, Inc., 2005 WL 3956648, at *1 (S.D. Fla. August 29, 2005). Rule 11 sanctions are proper when a party files a pleading that has no reasonable factual basis or a party files a pleading in bad faith for an improper purpose. Worldwide Primates, 87 F.3d at 1254; Pelletier, 921 F.2d at 1514; Universal Communications, 2005 WL 3956648 at *1. Both prongs are met here, as the Defendants’ assertions have no reasonable factual basis and were clearly filed for an improper purpose as discussed more fully below.
Yes, this is true, except that Annesser’s interpretation may be a bit warped. Rule 11 does not say what the Court must do, as Annesser claims. It states what the court may do. It seems that some of what Annesser is claiming here has already been addressed by the Judge. If so, Annesser could be in violation of Rule 11 himself.
First, I’m going to read the cases cited, and place links above where I can find those cases. And commenting as I review the cases:
Pelletier was one very complex case. However, as it matters here, the plaintiff’s complaint was dismissed by the court as baseless. The defendant requested Rule 11 sanctions (basically, attorney’s fees), and the District Court denied that. The plaintiff appealed the dismissal, and the defendant also appealed the denial of sanctions.
We affirm the district court’s orders of dismissal and of summary judgment. We reverse, however, the district court’s order denying Zweifel Rule 11 relief. The claims Pelletier and Schlanger brought against Zweifel are baseless and, moreover, were prosecuted in bad faith. We accordingly remand the case for the imposition of such sanctions as will recompense Zweifel for the expenses that he incurred, including attorney’s fees, in defending this suit in the district court. The appeal Pelletier and Schlanger brought to this court is frivolous. Therefore, pursuant to Rule 38, we award Zweifel double costs and attorney’s fees, which shall be assessed by the district court on remand, when it imposes the Rule 11 sanctions.
Wordwide Primates is also a case where a court had already determined the claims to be frivolous. Bass was the plaintiff’s attorney:
Bass argues, however, that he was under no obligation to conduct an independent investigation of the facts underlying Worldwide’s claim before filing suit, and that he could rely on representations made to him by his long-time client, Block.
We disagree, and hold that, under Rule 11, an attorney must make a reasonable inquiry into both the legal and factual basis of a claim prior to filing suit. Bass does not argue that he lacked the time to investigate the facts, that he was forced to rely solely on Block for information, or that he had to depend on forwarding counsel or another attorney. See Ousley Productions, 952 F.2d at 383. Absent such extenuating circumstances, an attorney cannot simply rely on the conclusory representations of a client, even if the client is a long-time friend. The district court did not abuse its discretion in entering sanctions against Bass in this case. Accordingly, the district court’s imposition of sanctions in the amount of $25,000 against Bass is AFFIRMED.
Access 4 All, I could not find as a full decision. However, it is cited in another decision, and the situation was that a case would not have been filed if the plaintiff’s attorney had done minimal investigation. Rossi here is not complaining about the entire counter-complaint, but about several details in it that may be weaker parts of the case. This is a far cry from a fundamental defect that should have been known to the plaintiff’s attorney, and I’m finding much more application here to Annesser than to Jones Day. People, glass houses, stones. However, until the allegations have been resolved, and shown to be not only frivolous, but actually damaging the defendant (here, counterclaim defendant) filing for Rule 11 sanctions is entirely premature. Rather, Annesser has already filed a motion to strike (mostly dismissed, one small change made) and a motion to dismiss (rejected). He is now attempting to use the same claims again. Naughty. This could be a Rule 11 violation. (However, I have not fully examined his motion yet).
Universal Communications Systems, I also could not find, but it is cited in another case, which also cites Worldwide Primates and Heritage Partners, which has:
The Heritage Parties’ cross-motion for sanctions based on frivolous conduct in connection with defendants’ provisional-remedies motion is denied. Contrary to their assertion, the Heritage Parties have not demonstrated that Modlin or TMG made “deliberate misstatements of law and fact.” Although the Heritage Parties complain about the extent of the motion practice, they themselves have used their cross-motion for sanctions as a means to restate their arguments pertaining to other motions ( see pages 1-15 of the Affidavit of Kevin 1. Smith, Esq., sworn to February 27, 2008).
I have some other work to do; I will come back to this and continue examining the Motion. The Nobel Prize claim was embarrassing. This one is expensive, the pot calling the oven glove black.
Proceeding to the substance, page 5
Defendants’ claim that they were unable to replicate any of Plaintiffs’ claimed E-Cat testing results “or otherwise generate measurable excess energy,” Defs.’ Third Amended Answer ¶¶ 9, 65, 67 and 96, squarely contradicts Defendants’ claims to the contrary in their WIPO Patent Application number WO 2015/127263 A2 filed on August 27, 2015. See Ex. A. In Table 7 of the patent application, IH represented that it was in fact able to achieve measurable levels of excess energy during a -day test:
The Patent is a 99-page PDF that is apparently image-only, no text, so it cannot be searched. Table 7 is on the PDF page 32.
This patent appears to have been filed by IH to protect the patent rights for the Lugano device, which was made by IH. The Lugano Report was about to issue, and this, as a demonstration of the technology, disclosed, would have made it unpatentable, I understand. So this patent was rushed into existence, in 2014, before IH had conducted their own, perhaps more careful testing. The Lugano report was, at some point, added to the patent. Table 7 is on page 23 of the Report.
If Annesser has carefully investigated this, he would know that this was not an IH test result (in spite of the language of that part of the patent), so the above allegation is false, on the face. The authors of the representations are the Lugano professors. Remarkably, Rossi has objected to an IH request for production of his communications with the Lugano professors, claiming this is harassment and not relevant.
Reading in conjunction Defendants’ counterclaim allegation that they were never able to achieve measurable levels of excess energy with their representations that they did achieve measurable energy in excess of what “can be obtained from any known chemical sources in the small reactor volume” lead to two possible conclusions: (1) Defendants’ counterclaim allegation is frivolous or (2) Defendants’ perjured themselves when they filed their sworn patent application. Regardless of whether Defendants perjured themselves in filing the patent application or misrepresented the facts to this Court, such actions are sanctionable.
If an IH agent represented, in the application, a purported fact known not to be true at the time, that would be a kind of perjury. However, Rossi v. Darden is not a trial over a false patent application, and the normal sanction for false statement in patent claims is that the patent can be voided. Did they make a false claim? Rossi has not shown it. At that point, they had the information from the Lugano professors who performed that test, in which Rossi participated. They did not participate, as far as we know. Then, later, they did their own testing, and they have represented in the case their results (no significant heat, which, itself, must be qualified, because of the known hazards of the field). There is no obvious contradiction, once the timing is considered. Knowingly false representation now and false representation then, intentionally or not, are independent. Annesser is trying to link them.
Then Annesser turns to a deposition from T. Barker Dameron.
Additionally, Defendants affirmatively represented to their investors, on numerous occasions, that they had independently verified measurable excess energy production.
Annesser does not cite evidence of this. Further, this entire line is legally off. If IH made frivolous claims, the early remedy is to request that the claims be dismissed (or as Affirmative Defenses, striken). Annesser failed in that, on various points that he now raises again. If the claims are dismissed, then there could be a basis for a Rule 11 filing, under some conditions. Not when the claims have not been adjudicated, either legally by the judge or perhaps factually in a trial. (Rule 11 sanctions are a judge’s decision.)
At the same time Defendants were allegedly failing to “generate any measurable excess energy”, they were touting the excess energy recorded by their own engineer during independent testing as well as during the Validation Test
Annesser is confusing events that happened at greatly different times. The Validation test was not recorded by “their own engineer,” but by Penon, and IH is now claiming that there may have been fraud involved there. Annesser has not presented any evidence that IH was “touting” what he claims. And even if so, this would only weaken the IH position in a trial, perhaps impeaching credibility. Only with a showing that false statements were made to the court, where careful investigation would have shown them false, could a Rule 11 sanction be put on the table.
In fact, Engineer Thomas B. Dameron, III, the Defendants’ subject matter expert and sole engineer, testified as follows:
And then images of deposition pages are shown. Annesser very much wants IH to not have another engineer, specifically Murray. This is on pages 7 and 8 of the Motion. Annesser is confusing single test results (which can vary) with reliable confirmation (which is obviously necessary for a commercial product). Dameron acknowledged that they may have gotten individual results of perhaps COP 1.3. If that were repeatable, that would be barely significant, not greatly so. What did IH actually represent to the court? (And, remember, pleadings are not attested; deliberate presentation of false information can be sanctioned, but it is not perjury.)
From the Answer, paragraph 1.
the E-Cat technology has never been independently validated by a scientifically reliable methodology to produce the energy levels Plaintiffs now claim, and has failed to produce any commercially viable product. Indeed, using the E-Cat technology Plaintiffs directly provided them, Industrial Heat and IPH have been unable to produce any measurable excess energy.
I have commented before that this must be glossed as “significant, confirmed excess energy,” because there is noise and artifact in testing, and individual results may be positive, whereas overall results negate that. The Lugano Report itself shows how an individual test, because of errors in how it was conducted — which are now well-known — can be far off.
The same is repeated in paragraph 31. In the Counter-complaint, paragraph 9, page 30 of the pdf, IH claims, with reference to the time period of the Doral plant (not the earlier testing):
9. During the same time period, Counter-Plaintiffs continued their own efforts to replicate Rossi’s purported results using the E-Cat IP that Leonardo and Rossi had provided them when they received the $10 million payment. Using the E-Cat technology Leonardo and Rossi directly provided them, Counter-Plaintiffs were unable to replicate any of Leonardo and Rossi’s claimed results or otherwise generate measurable excess energy. […]
Dameron’s deposition merely clarifies this, by allowing an individual test result (or with many tests, a few) to “generate energy,” meaning to appear to do so, at relatively low levels. This is routine in low energy nuclear reaction work, and many such tests are later concluded to be errors.
Annesser moves to the next alleged frivolous claim:
Defendants assert that Plaintiffs wrongfully provided or disclosed, without prior consent and without a non-disclosure agreement, E-Cat fuel samples or information to scientists for study and publication. (DE 78, ¶107-08). Contrary to the Defendants allegation in their Amended Counterclaim, Plaintiffs did not provide samples of the E-Cat fuel to the scientists who prepared the Lugano Report. As the Lugano Report itself reads, the scientists themselves took samples of the fuel both before and after the experimental E-Cat run in order to analyze the efficacy and accuracy of the E-Cat. Lugano Report at 1-2. What’s more, the fuel composition was detailed in Plaintiffs’ patent application number 13/420,109, which was public at the time that the Lugano Report was drafted.
This is heavily confused. First of all, the claim:
107. Addressing solely the time period prior to the filing of their Complaint in April 2016, Leonardo and Rossi violated the second confidentiality provision by disclosing various information about the E-Cat IP:
a. Leonardo and Rossi, without any written waiver from IPH, provided samples of the E-Cat Fuel (purportedly from both before and after an E-Cat reactor was operated) to the scientists who prepared the Lugano Report, or authorized the scientists to obtain the samples. The scientists analyzed the E-Cat Fuel samples and published the results of their analysis. See Ex. 14.
b. Leonardo and Rossi, without any written waiver from IPH, disclosed specific information about the E-Cat Fuel to Norman Cook, a professor at Kansai University in Osaka, Japan. Rossi and Cook thereafter published a paper detailing new information about the E-Cat Fuel sample not disclosed in the Lugano Report. See Ex. 22.
c. Leonardo and Rossi, without any written waiver from IPH, have made public comments about the E-Cat Fuel sample on the Internet.
108. None of the E-Cat Fuel sample disclosures referenced in the prior Paragraph was protected by a non-disclosure agreement – as evidenced by the fact that the information obtained from the disclosures is publicly available. On information and belief, Leonardo and Rossi have made additional E-Cat Fuel sample disclosures without IPH’s consent and without the protection of a non-disclosure agreement, including as recently as May 2016.
Did Rossi obtain prior permission for these disclosures? IH is here claiming that he did not. Secondly, who physically provided the samples for analysis? From the Lugano Report, page 7, my emphasis:
The dummy reactor was switched on at 12:20 PM of 24 February 2014 by Andrea Rossi who gradually brought it to the power level requested by us. Rossi later intervened to switch off the dummy, and in the following subsequent operations on the E-Cat: charge insertion, reactor startup, reactor shutdown and powder charge extraction.
Annesser has not shown that the Patent application was prior. The application as shown is after the Lugano Report was added. As I recall, the original application had nothing about the fuel, but I’d want to look at the actual documents.
Without fuel disclosure, the patent would have been useless, and without the patent, Rossi would have given away his IP.
In addition, Defendants’ allegation that they did not consent to the disclosure of E-Cat information to scientist Norman Cook (DE 78, ¶107(b)), is contradicted by evidence in Defendants’ own possession.
Annesser is attempting to show contradiction to attempt to establish a conclusion. However, the evidence he cites shows “later acceptance,” not prior consent. Once the information has been disclosed, it cannot be un-disclosed. This is all part of an IH strategy to show Rossi unreliability, not necessarily to show actual harm; such harm would have been possible, that’s the point. If the technology is not real, disclosure might harm IH in another way.
On February 5, 2015, Rossi emailed Defendants Darden, Vaughn, and other IH and/or IPH representatives informing them that Professor Cook wanted to publish a report on the theoretical underpinnings of the E-Cat, and that the paper would form part of Defendants’ intellectual property. See Ex. B. Rossi confirmed to Defendants that they would have the opportunity to review the article before its publication
Exhibit B. From this, I infer the possibility that Rossi had already disclosed the information to Cook. This does not establish that IH consented. It could establish that they had an opportunity to object to publication, but as I recall, the Agreement required certain conditions, allegedly not satisfied.
Again, on March 17, 2015, Rossi emailed Defendants Darden, Vaughn, and other IH and/or IPH representatives the final version of the Cook report which incorporated edits that IH had itself required Rossi to make. See Ex. C. Defendants had the opportunity to, and did, review the Cook Report’s contents before its publication. Defendants approved the contents of the Cook Report, and knew that it was going to be published – with their consent – in the Journal of Physics.
Exhibit C does not clearly show what Annesser claims. It is possible to argue that IH post-facto accepted the disclosures. This would then impact any damages that might be claimed. So far, all the documents came from Rossi, not from IH.
Additionally, on April 9, 2015, Daniel Pike, an affiliate of IH and IPH, informed Rossi and Darden that the Cook Report had been translated to Chinese. See Ex. D. Darden actually congratulated Rossi on the translation, exclaiming: “This is very exciting to think about. Now about 1.5 billion more people can read your paper. What a great world it is.” Id.
Sarcasm? I don’t know. What is shown here is possible post-facto consent, with evidence of prior consent by default, failure to object. If consent in writing was required (the Agreement could be read that way), then mere failure to object would not be controlling. Once the informatino was disclosed without satisfying the conditions of the Agreement, it could not be undisclosed. But Rossi could be held liable for any damage from the disclosure, and a post-facto comment like that of Exhibit D would not stop this.
Defendants’ allegation that Plaintiffs made public comments about the E-Cat fuel sample on the internet, without prior consent, is likewise meritless. To the extent that Plaintiff disclosed any E-Cat fuel information on the internet, that information was a matter of public record available to anyone with an inquiring mind – including Defendants when they brought this meritless claim. Plaintiff did not disclose any confidential, proprietary information belonging to Defendants on the internet or elsewhere. Defendants failed to attach any exhibit showing that Plaintiffs ever made any such comments, and cannot do so because such comments do not exist. This claim is yet another fabrication designed by Defendants to distract this Court from Defendants’ breach of the License Agreement.
Perhaps Annesser doesn’t realize the significance of “May, 2016” in the IH complaint. That is when Rossi provided a fuel sample to Bo Hoistad, one of the Swedish professors — and Rossi has attempted to avoid disclosure of communications with these professors. IH has not presented evidence supporting this claim (it is not required, necessarily, and if it’s not clear, Discovery would clear it up), but it’s specific enough to go ahead.
Next, Defendants’ Fourth Affirmative Defense, as set forth in Defendants’ Third Amended Answer, Affirmative Defenses, Counterclaim and Third-Party Claims frivolously alleges, inter alia, that Plaintiffs “breached the license agreement [by]…failing to report and pay taxes on payments/revenue made under the License Agreement.” (DE 78, ¶133).
Let’s cut this short. This was already litigated. The Rossi Motion to Strike addressed the tax issue as “Paragraphs 126-133 of Count II of Defendants Second Amended Counterclaim titled “Failure to Pay Taxes” [DE: 50]”
The Rossi Motion to Dismiss likewise addressed the tax issue.
The Order on the Motion to Strike denied the request without comment. The Order on the Motion to Dismiss dismissed the request to dismiss the tax issue. Annesser is attempting to relitigate what has already been decided, but without actually filing an appeal, and all the while claiming that IH is attempting to increase Rossi’s legal expenses. Moving on, Annesser has:
In their Complaint, Plaintiffs allege that “[u]nder the supervision of the ERV, the Guaranteed Performance Test was commenced on or about February 19, 2015…” (DE 1, ¶66). Notwithstanding overwhelming evidence to the contrary, including certain party admissions, Defendants continue to deny the fact that the test being undertaken in Doral, Florida by Engineer Fabio Penon was the “Guaranteed Performance Test” contemplated in paragraph 5 of the License Agreement including amendments thereto.
The Judge almost allowed the dismissal of Count 1 of the complaint on the basis of defects in the setup of the GPT. IH filed a motion for Judgment on the Pleadings, then withdrew it. My opinion is that when Discovery is complete, IH may again file a Motion for Judgment. Their case is that strong. Annesser is attempting to litigate this in an alternate way, through a clearly premature Motion for Sanctions. He is presenting evidence in this filing, but this is not a filing where that would be done, as far as I understand the matter. What does he show?
A deposition by Dameron in which Dameron says that he knew the plant was being sent to Florida for the GPT. However, there were specific conditions required for a GPT, and sending the Plant to Florida for that purpose, if it were done, would not, in itself, set up those conditions. That deposition is bare bones, the Dameron answers are “Yes” and “Correct,” while Pace objects to the form of the question — which was leading, of course. This is, in any case, about before the test began. Where was the consent to starting the test? Further, we do not have the context of the question. In court, details would be brought out that are not visible here.
(This, by the way, is the strongest evidence I have seen that IH knew about the GPT idea. It might only mean that Dameron knew that Rossi would claim that. It does not show actual consent. Was Dameron asked about consent?)
Then they show a deposition from Barry West, in which West acknowledges knowing that the Test would trigger a payment, but says that he learned that “a little late in the game.” This is actually evidence that it was not as Rossi has claimed, known and accepted by those involved. (However, West would not necessarily know.)
We do not know what other communications occurred. From 108.2, 108.3, and 108.4, we see that Rossi was involving Annesser by November 16 of 2015, so he knew about possible legal problems before the IH letter of early December, and I would assume it was earlier than that. The exclusion of Murray was a hostile act, in July, 2015 and I suspect that McLaughlin was excluded before that.
Annesser appears to be improperly using a Motion for Sanctions to substitute for a Motion to Dismiss that already failed, and then for a Motion for Judgment that would clearly be premature, as the evidence alleged does not clearly and definitively establish deliberate deception or clear negligence.
Very promptly, one day, no response filed by IH, the Judge Denied the Motion for Sanctions. Citing an authority, she has:
The Advisory Committee Notes make clear Rule 11 should not be used to “test the legal sufficiency or efficacy of allegations in the pleadings [as] other motions are available for those purposes.”
That’s what I thought. She refers, as I did, to the rejected motions to Strike and to Dismiss.
Considering the outcomes on these previous motions and given Plaintiffs have not subsequently filed a motion for judgment on the pleadings, the present Motion is premature.
Being fully advised, it is ORDERED AND ADJUDGED that the Motion [ECF No. 108] is DENIED without prejudice.
Now, if I considered, strongly, that this is what the Judge would do, did Annesser know that? What about his adult supervision at his new firm? From these events and others, I conclude that Rossi is driving the bus, Annesser is just doing whatever Rossi wants. That could get expensive if the court sanctions him.
Engineer Thomas B. Dameron, III testified that there could have been a COP result of 1.3 at some point in time.
As I pointed out above, the meaning of that is not clear. Individual test results can vary. Perhaps they got that number, and when Rossi left the room, the heat mysteriously declined. Previosly, on lenr-forum, I pointed out that the IH claim in the suit of being unable to measure any heat needed to be glossed as “significant heat,” or “heat clearly above possible error.” COP 1.3 might or might not qualify as that, depending on conditions that, of course, were not addressed. We only saw a snippet of a long deposition.
Lots of bluster in the new filings, but no actual GPT mention in the supplied documents.
I’ll have to go over them in more detail.
This looks like Leonardo’s main attack, though.
Or Annessers main grandstand to appease Rossi’s demand that he Do Something About Those Lying Snakes!
… And here comes Lugano back from the dead. Saying that IH was lying saying they hadn’t replicated. Look here in their patent application, they state they got a COP of 3+
… if they had said that. The Lugano team said that, and was wrong. IH has disavowed that report. That something is filed in a patent doesn’t make it sworn testimony, it can be on information and belief, and when that patent was filed and updated with the Report, they were accepting that report. Annesser is totally confused about his. So why didn’t Rossi correct him? Rossi is doing with his attorney like he did with the Lugano team, letting them make fools of themselves. I think it’s part of his game.
I could get a COP of 1.3 pretty easy. I think most of us could. We must have identified a hundred ways on the forum to get wrong results , over the years.
This was the insanity of the GPT concept: what one would want to know is the reliability of individual reactors, the MTBF for them, not for a whole multi-reactor Plant. If we assume that the reactors worked, nevertheless, how reliable would they be? Rossi could replace 10 a day, say, easily. So 100 reactors could work for about 10 days, maybe. And would pass the GPT, as it was set up. It could also have far less than 1 MW of power, there was no power specification, only COP.
Some meta info on the exhibits is that it looks like Rossi forwarded a bunch of his e-mails to his lawyer John Annesser on November 15, 2015. Looks like Rossi was preparing for litigation at that point in time. I wonder how that fits in the rest of the timeline (visits by Murray…?)
He did. Murray did not visit until February, 2015, at the end of the “Test.” The last IH visit before then was, according to their response to Rossi’s First Production Request, August 21, with Darden, Vaughn, and the two Woodford reps. (And before that it was July 7, with an unknown date for Daniel Pike.) There were no IH visitors in the last six months of the “Test.” That’s a clue.
Sorry, but is that a statement made by Rossi or by IH?
And which device is it about?
barty needs a program. Maybe I’ll write one, a Guide to the Case.
barty was partly answered below. This statement is possibly taken out of context by Annesser (Rossi’s attorney). The snippets we have contain no indication of what device was involved. As an example, perhaps they tested the Lugano device,using similar calorimetry and found a COP of 1.3, and thought this was a good result — though not at the Rossi-claimed level, and not what the Lugano team claimed. And then they tightened up the measurements and the apparent heat was shown to be artifact. We don’t know.
Annesser is trying to claim contradiction. It won’t work. There are reasonable interpretations of what was said that do not contradict, but clarify.
[quoting T. Barker Dameron:]
“I can’t say that we never had a result that was — let’s see if I can say this right — we probably had results greater than one, 1.3 might be an answer . . . .”
Um, okay then. Seems like he practiced this answer many times, but still didn’t get it to come out quite right. So was it 1.3? What was it really? And why in the world does it seem that IH has been denying this all along?
If he practiced many times, his performance was poor. Pace objected to the “form.” I get it, the question was leading. Dameron went ahead and answered. It’s vague. He may be recalling events of three years earlier, when the matter seemed very different.
It seems like IH has been denying this because their earlier statements were interpreted as black and white, polemic with no exceptions. Dameron mentions “results.” What kind of results? Carefully reviewed results accepted as showing real heat, or just a quick interpretation of some readings? We have no idea if the deposition went into all this; since this deposition would be questions asked by Rossi’s lawyer, IH could not guide it to bring out their side. That is what would happen in the trial. I would think that Rossi’s lawyers will try to use this deposition to impeach contrary testimony. If they ever get that far. Basically, if IH is substantially telling the truth, i.e. their measurements never clearly showed excess heat, then they are likely to prevail, in spite of such appearances manufactured by how the questions were contexted and asked. Notice that the question specifically said, “whether it’s reliable or not reliable,” to look for the extreme, and then use the extreme to contradict the ordinary.
This revelation did not change my opinion about what happened at all. They did a lot of work, they may have run hundreds of tests. Mistakes are made, conclusions are jumped to, etc. Then the dust clears and the smoke settles and they have conclusions and their conclusion is “no heat.” Very normal.
IH’s guys Thomas B. Dameron, III and Barry West both seem to indicate under oath that they thought the Doral test was the GPT. This has always seemed like a no brainer to me–all involved seemed to be acting like it was. I’m pretty sure a jury would draw the same conclusion in light of the evidence. It takes some real mental gymnastics to think otherwise. Abd was certainly good at that.
No gymnastics required. The Dameron statement, if he understood what he was saying, showed that he knew about GPT before the plant went to Florida. Whether or not this has legal significance is unclear. If it was sent there, when did the Test start. It was sent in 2014 (September?) The Test allegedly started in February. How was the date set? This is crucial from the Second Amendment to the Agreement, but there is no allegation by Ross that I’ve seen anywhere that there was an agreement, as required, to the start date.
The West statement indicates that West didn’t know until “late in the game.” A GPT, by the Second Amendment, must be known in advance, agreed to in writing by “all the parties.”
What is possible is that IH did realize that Rossi was setting this up as a GPT, but also knew that it would not be unless they consented, explicitly. Rossi has not shown anything so far showing that consent — and Dameron’s knowing, only vaguely represented here, would not show legal consent.
The extreme here is that IH wasn’t nice. They let Rossi believe that it was his GPT and did not give him legal advice to get it in writing. One of the claims that Rossi had that was dismissed was that IH owed him a fiduciary duty. They did not.
We really need to have someone purchase all these transcripts!
[and then SS seems to either have manually entered one of the deposition or ran OCR on it.]
There is a possible misunderstanding here. The depositions are not public record, in themselves. They are filed with the attorneys in the case, for their use. If they provide deposition material in support of a motion, or this is raised in the trial, then that becomes public record. Only what they file becomes public record. So either side can reveal the depositions unless they have been marked as protected (and such marks can be challenged).
I have some suspicion that Annesser filed this Motion for Sanctions as an excuse to reveal what he believed would play with Rossi’s fans. He’s playing with fire if he did that. I don’t think the Judge was amused by this ridiculous Motion.
So summarized the new top facts:
The leading engineer of IH confirmed at curt that they (IH) were able to independetly build a reactor device with a COP above 1, based on Rossi’s IP.
At least once.
“Court,” barty. “Curt” means something entirely different. (You wrote this before, or I wouldn’t mention it.) This looks important, but isn’t. They do not believe that they built a device with a COP above 1. If the question were asked, Dameron would almost certainly clarify that they came to consider that 1.3 COP result to be an error. The question was designed to create the appearance that barty fell for. Consider the substance of the IH-Rossi Agreement: the technology was represented as power-plant ready, COP 6. If GPT COP was less than 6, but at least 4, then payment was to be reduced proportionally. 1.3 is a joke, in that context. Useless. If 1.3 were real, it could be scientifically significant, but this does not confirm the Rossi claim. However, they don’t believe it is real.
Barty – for starters – noise floor? Also that Rule 11 submission appears to have a distinct razor-edged boomerang shape – can you see it?
I doubt he can see it.
… If Rossi sincerely thought that the tax requirement was immaterial, why did he sign the contract including such a requirement? One can only conclude that Rossi never had any intention of respecting the contract.
Perhaps. The Motion for Sanctions was doomed, this was way premature (and unlikely to be substantiated, i.e., to mature, by a later dismissal or order striking the claims, this was already adjudicated). Rossi is apparently obsessed about the tax claim, the mention that he had “tax problems.” I think he was desperate to get that struck and wanted Annesser to go after it again, to punish IH — and their attorneys — for being so rude to him. For Annesser’s sake, I hope he has it in writing that Rossi ordered him to file this beast and that he fully informed Rossi of the risks.
… And just because Dameron “found out late in the game” $100 million was on the line, and West thought it was the GPT all along, does not a GPT make. Both could have come to hear what they did, or come to believe what they did, from workplace rumors purposely started by Rossi, Penon, Bass, Johnson to establish an estoppel case in advance. So far, nothing in writing supports this being anything other than a combined R/D/ certification, money making endeavor.
Shane got it backwards…. I.e., Dameron knew before the Plant was delivered, West didn’t know until late. I’d certainly want to know how Dameron knew, where did he get the idea from? The real question is what he knew, and he was asked a leading question that actually assumed the answer. He knew something. What was it? That the Plant was being sent to Florida. That it was a Test and that Penon would be responsible for it? That Darden had agreed to this being a GPT? And … when was the Start Date? And how was that set? Further, what did he know about the “customer”? The question was designed to elicit an answer that would serve Rossi’s purposes. It would not be allowed like that in court, I’d think. Pace objected. I don’t know why Dameron went ahead and answered. This doesn’t seem to me like a coached witness. There may have been more he planned to say, to clarify, and we aren’t shown that!
Rossi seems to be using the public court documents (in some cases) as an informal forum to publicly espouse his side of the story. Info that would not normally appear in the public documents can be aired this way if crafted just-so.
Not a bad idea.
He can do that. In a Motion for Sanctions, bad idea. This, and a few other actions by Annesser, could have damaged his relationship with the Judge. He is treading on thin ice. Dewey is right. Annesser is vulnerable to a Motion for Sanctions. Just not yet, IH would first need to prevail on a Motion for Judgment, dismissing certain aspects of the Rossi case as frivolous. As to the Motion for Sanctions, Annesser could face a Motion for Sanctions for filing a frivolous Motion, which was dismissed because of no basis at law yet. The Judge despatched it promptly, however, without waiting for an IH objection. The damage could not be more than a day’s attorney’s fees, I’d think, if they started to prepare an objection, as to that basis. After a Motion for Judgment, I can certainly think of things that Annesser should have checked on, and probably didn’t.
Continuing on lenr-forum:
[…] What is very clear to me is that people and organizations are willing to bend the truth when it comes to a world-changing technology if it serves their purposes. What is not clear to me is whether IH has revealed their highest COP based on their replications of Rossi’s reactor. The under-oath statement by their “engineer” is very protective–evasive even. I’m relatively certain that we have a smidgen of the facts at this point.”
Many “people and organizations” are willing to “bend the truth,” whether or not it involves “world-changing technology.” IHFB is here mentioning such technology because he imagines that this gives IH increased motivation to be deceptive. In fact, it could give them motivation to be highly conservative and cautious. IHFB is not careful about fact, which, perhaps, serves his purposes. (This is not a claim of financial motivation, but people do have purposes. I certainly do, and I am painfully aware of how my own purposes may warp my choosing of “truths.” And I’m trained to recognize that and factor for it.)
The man, T. Barker Dameron, was the IH manager or engineer in charge of Rossi development, until perhaps June of 2015, we do not know exactly, nor do we know if he still works for IH. Dameron was not evasive. The question was loaded. The answer is clear, and if, in fact, any testing that Dameron was engaged in was clearly positive, he’d have said so. The answer he gave could mean, simply, that there was a measurement at that relatively low level, 1.3; in this field such measurements are found and are often in error and not to be trusted until carefully confirmed. The answer seems vague because the question created and pulled in any possible unclarity, which was then presented in this Motion for Sanctions as if clear and definitive. This was blatantly deceptive, and seems to be an attempt to play to the internet audience, not the Court, which immediately and clearly rejected it.
We do not know if there were any follow-up or clarifying questions. If not, this shows that the Rossi attorney considered the answer quite satisfactory, what he wanted. So vagueness now is invented by IH Fanboy. If so, then the presentation may have been misleading, which seems likely.
IHFB – perhaps you dove into one of Petroldragons waste lagoons and emerged with oily eyes. You definitely did not dive deeply enough into the story. There are many places to start – here are a couple of hints:
Go spend a little time figuring out who owned the book publisher for the waste to oil story. Then spend a little more time tracking down the fake invoices and money laundering that took place – will you be surprised if the “book publisher” is involved there as well? Then spend a little more time tracking down the plea bargains / prison sentences for Petroldragon associates. The story is truly toxic on multiple fronts and we’re going to get to hear all about it at trial if the case makes it that far. Once you have made it that far into the story, then you can work your way over to the rejected Petroldragon oil facts. Makes me want to go take a shower.
For those who need a program to know who is who and what is what, perhaps we will write one. IHFB had not mentioned Petroldragon, but was otherwise defending Rossi and accusing IH of deception.
IH Fanboy wrote:
I think you might have a motive here to smear Rossi. So I do take what you say with a grain of salt.
I’ve done my own research. In addition, I’ve read An Impossible Invention by Mats, which arguably is the best reference for what happened, as he actually has done more digging than probably anybody. Facts can be twisted like a plastic nose, and I’m sure they will be in a case with the stakes being what they are.
First of all, on the scale of “research,” with 100 being thorough, IDHB hasn’t done 10. He read An Impossible Invention, which he does not quote, but is presumably relying upon. Mats did some research. On that scale of 100, maybe 20. Mostly Mats tells the story from Rossi’s point of view. However, he notes:
Exactly what led to what, before and after the legal tangle, is difficult to untangle afterwards, especially in an opaque country like Italy, where things are rarely what are seen.
Then this matter has been studied and presented by yellow journalists, who love a scandal, and some of the Italian reporting might be that, and by Lewan, who maintains a certain skeptical reserve, when he remembers, but who also forgets at times. He is excusing, in what I quoted above, his lack of a definitive answer; it is, indeed, “difficult,” but not imposssible, merely a lot of work (read “money,” in the real world, mostly) and who has the motivation to invest that money or work? Not Krivit, who found it convenient to develop a simple story of fraud and deception and who does not care if he exaggerates the evidence to strengthen that story.
It is entirely possible that IH did invest in that research, back in 2012-2013. They had a need to know what they might be dealing with.
So who is Dewey Weaver? He is an investor and consultant to Industrial Heat, and must be considered an insider, though we do not know the depth of his knowledge in all cases. Does he know the IH legal strategy? What must be said is that he might. So far, what he has claimed has largely developed in the case. That IH would bring up Petroldragon in a trial makes complete sense. There are many analogies, and past behavior can be brought up in this case. It is not irrelevant (as Rossi is sure to claim, as he has already claimed about minor mention of his “tax issues”).
Bottom line, Dewey Weaver is a real person, with disclosed possible conflict of interest. Most people who participate extensively in these discussions have some such conflict, but sometimes it is only the standard internet interest in proving one’s own beliefs to be right. Dewey has paid his dues, has fully earned a right to his opinions and what he chooses to report as fact. Who is IHFB to attempt to discount what Dewey has written? Nobody we know, there is no information in the profile. This is, essentially, unreliable fluff, with nobody taking responsibility for it.
At the end of the day, I want the world to have LENR+. Why does it seem that IH has done all that they can to impede the rollout of LENR+, going so far as to make it sound like they never achieved any level of replication of the Rossi effect?
There are very simple answers to this question. It seems that way to someone who believes that Rossi has developed “LENR+”, and that the obstacle to its “rollout” is IH. In fact, anyone familiar with the history could readily notice that the impediment has been, over and over, Rossi, often attributable to his paranoia, but in some of the documents, to his greed. He lied to those who had trusted him, that’s completely clear. What he did with Petroldragon can be much more intelligently read than what IHFB has done. Rossi created that disaster. Sure, he had enemies, probably, some earned, some perhaps, themselves, corrupt. But what kept him from moving forward was how he handled the challenge.
In this case, suppose IH wanted to stop the technology. This was Rossi’s story about corporations that offered to invest in Petroldragon. He believed that they only wanted to crush the technology, to keep it hidden for their own nefarious purposes. So he rejected that support. Sound familiar? It should! I recommend reading ANI again, this time without the rose-colored glasses. Just see what is there, and, where possible, compare it with direct evidence, such as the Rossi email to IH explaining the Hydro Fusion “failure.”
Nobody has succeeded in a confirmation of the “Rossi Effect” where such confirmation was not later shown to be suspect. A truly independent evaluation was only possible for one party: Industrial Heat. They are claiming failure, i.e., that no results clearly showed excess heat. That word “clearly” is important, because it is quite easy for some artifact to affect results, even to well above COP 1.3.
Circumstantially, if the Rossi Effect were real and one wanted a totally convincing demonstration, one would arrange the reactor so that heat is retained, not rapidly carried away, and with variable cooling, so that reactor temperature can be held constant, whether there is or is not a reaction. Presto! With the same reaction that might only seem to be COP 1.3, COP would become infinite. Self-Sustained. Clear, and showing reliability (how long can this go on without refueling?)
Nobody has done that, and been confirmed, with any LENR. Mostly, this is a demonstration for skeptics, the work is not scientifically necessary, because controlling environmental heat is a simple engineering task. The environmental temperature is not a “heat input” to the reaction, if it is not dissipated, with high insulation, the reactor will remain at its established temperature unless heat is conducted away.
What stopped Rossi from going ahead, when he was finished with his year as “chief scientist” for IH, to develop his technology in Sweden? IH could not have stopped him. What stopped him, on the face of it, was his earnest desire to be paid $89 million, but he failed to handle the paperwork. Again, Petroldragon, sound familiar?
The English Wikipedia article was cited as a place to read about the Petroldragon history. It was correctly pointed out that Wikipedia articles relating to cold fusion are highly biased, due to years of pseudoskeptical mismanagement and violation of Wikipedia policies. However, the Italian Wikipedia isn’t so bad. I use Google translate, it’s quite readable. Someone who wants to do real research will want to go into actual court records and other primary sources. Newspapers show what the media was saying, not necessarily fact, unless it can be verified.
… on a matter of vast importance … referring to yesterday’s new case documents …
I notice some are signed by Chris Lomax. any relation to “our” Abd Lomax? I wouldn’t think so since I think he has all daughters.
I find it interesting that IH requested discovery to Aug 5 2016. Why then?????
First, as to daughters, I don’t have “all daughters.” I have two that are teenagers, one of whom lives with me. I have five other children, and three of them were boys, two were girls. Oldguy probably jumped to a conclusion. As someone else pointed out, I’ve previously answered the question that Christopher Lomax is not a known relation. There is likely some connection in some way, but … he is obviously of African descent, or something like that, and I’m not … but one of my daughters is.
Regardless of how he came to carry the Lomax name, he’s done it proud. Maybe I’ll get to meet him some day.
Secondly as to questions about Rossi v. Darden, the case post here has the whole docket, indexed and ready for immediate reading or download, and now with dates of filings. From that it is easy to see what happened on August 5, 2016. Look for yourself! But Dewey Weaver was correct in his guess.
Earlier today, I wanted to see all the references to T. Barker Dameron in the documents. So … I installed a google search tool, now available from every page. Nifty.