Judge ALTONAGA quotes ERV reports in her ‘background’ summary.

1st Official Post

    This must mean the ERV report supports Rossi’s claims and is accepted as ‘fact’ by the court. Perhaps IH must mount a convincing ‘challenge’ to the ERV report to survive. Reference: Case 1:16-cv-21199-CMA Document 24 Entered on FLSD Docket 07/19/2016 Page 5 of 25


    Judge ALTONAGA quotes ERV reports in her ‘background’ summary.Thereafter, the Guaranteed Performance Test was commenced on February 19, 2015 under the supervision of the ERV. On March 29, 2016, the ERV published a final report, confirming the E-Cat Unit satisfied all the performance requirements imposed by the License Agreement, including the requirement the E-Cat Unit produce energy at least six times greater than the energy it consumed. Pursuant to the License Agreement, on March 29, 2016, Leonardo demanded payment of the remaining $89,000,000.00; yet, Defendants refused to make this payment.


    Does this prove from the courts perspective that Rossi's invention actually 'works'?

    • Official Post

    As I indesrtand in the answer to Motion To Dismiss, you must assume all what is said and claimed in the complaint is true, only to find what is non sensical.


    the ERV report say E-cat works, and assuming it is real, this mean E-cat work. I agree.


    Afterward, after some discovery phase (It looks like the "instruction" phase in France, with our Napoleon style of inquiry) there will be an analysis if the claims are true or fals.


    currently all what is said is that half of the complaint are nonsensical relative to law.


    This is more a reason to fire your attorney than to predict any outcome.

    AlainCo


    I agree, but what surprises me is that the ERV reports do not appear to be placed in the 'court docket'. We the public cannot see them. But the Judge can and is using them as evidence in her ruling in connection with the MTD. This must give us the only early summary of what the ERV report actually says as up to now its been nothing but speculation ( i.e. Rossi, Jed, Dewey says). Quote from the Judge:


    Quote from frankwtu

    E-Cat Unit produce energy at least six times greater than the energy it consumed.


    Is this the first independent (non Rossi) indication of what the report says? If so it goes against what Dewey Weaver has been saying who I think has suggested it will not be good for Rossi.


    Will the IH validation attempts (which were unsuccessful) be accepted by the court as sufficiently 'independent' and 'expert' in character to challenge the ERV reports?


    I have my doubts. But I acknowledge anything can happen.


    Best regards
    Frank

    • Official Post

    that the ERV is not in the court docket is maybe because it is not yet considered, present, read, analysed.


    the answer to a MTD as I understand is just considering the internal coherence of the complaint, eliminating what cannot be proven true or false later, or what is not subject of a complaint.


    Not only there is no need to have any evidence to answer a MTD, but as I understand this is a fault to consider evidences at that stage.

    AlainCo


    Quote from AlainCo

    eliminating what cannot be proven true or false later, or what is not subject of a complaint.


    So, has the Judge, by quoting the 'success' of the ERV report illiminated a chance that it may be 'challenged', I doubt it.


    But how did the Judge get to even see the ERV report if its not in the court docket? She must have seen and read it as she is basing her judgement on what it says.


    And, if she has read it, can we take what she says as fact i.e. COP greater than 6?


    Best regards
    Frank

    Jed


    Quote from JedRothwell

    I believe the ERV claims the COP is 50, not 6. I think the claim of 6 came from the documents Rossi filed with the lawsuit. So the judge may not have seen the ERV.


    The Judge said categorically the COP was greater than 6 not that it was 6. This is relevant as the contract required payment of $89 million if the COP is greater than 6.


    So Jed where would she get that information from, if not from the ERV report? And why would she claim in her ruling that it was from the ERV report.


    This is what The Judge actually said:


    "Upon conclusion of the Validation Test, the ERV certified the E-Cat Unit satisfied each of the Validation requirements within the Validation Test period, and IH paid Leonardo the second payment of $10,000,000.00. ....... Accordingly, on January 28, 2015, the ERV prepared and submitted to the parties a proposed test protocol for the Guaranteed Performa n e Test. (See id.65 ). After making several minor changes, Darden, on behalf of IH and/or IPH, agreed to the test protocol. Thereafter, the Guaranteed Performance Test was commenced on February 19, 2015 under the supervision of the ERV. On February 15, 2016, the Guaranteed Performance Test successfully concluded. The E-Cat Unit successfully operated for over 350 days out of a 400 - day period at a level substantially greater than the level achieved during the Validation Test.


    On March 29, 2016, the ERV published a final report, confirming the E-Cat Unit satisfied all the performance requirements imposed by the License Agreement, including the requirement the E-Cat Unit produce energy at least six times greater than the energy it consumed.

    That is pretty conclusive to me. Greater than 6 could well be 50. But Jed you are wrong again; it was not COP of 50 it was COP greater than 6 and up to 50, there is a big difference.


    Best regards
    Frank



    .

    I think the judge's statements all come from documents filed by Rossi, rather than direct quotes or references that can only be made to the ERV. If the judge were to refer to the ERV, it would have to be in the docket. My understanding is that the judge cannot refer to or quote from documents not in evidence (not in the docket).


    This is a minor point.


    In any case, in considering a Motion to Dismiss, the judge has to treat all claims as true. She can only dismiss if the claims do not constitute a violation of the law or contract. Just because at this stage she takes it as a given that the device produce a COP of 6 or more, and that it ran for 350 days, that does not mean she actually accepts these things as true. If there is a trial, these claims may be successfully challenged by expert witnesses for the defense.

    Jed


    I agree, we should wait and see.


    But if this came from Rossi and the report does not claim success (as you and Dewey claim) then Rossi will be in 'contempt of court' possible I suppose but very unlikely. I think what the Judge has said is what the report actually says.


    Best regards
    Frank

    • Official Post

    Frank,


    Whether or not the ERV's report is in the courts hands, I think it is safe to assume it says exactly what Rossi claims. Were it not so, being the heart of his case against IH as it is, this suit would have ended almost as soon as it began. IH does have their own copy, and if it supported their defense, and shows Rossi was lying to the court, they would have said that in their MTD.

    Quote from frankwtu

    But if this came from Rossi and the report does not claim success (as you and Dewey claim) then Rossi will be in 'contempt of court'


    You are wrong. I presume the ERV report does claim success. Obviously it does, or Rossi would have no case. Rossi's analysis of the sample data I saw claims success. However, it is wrong. It is mistaken. But it is not contempt of court to be mistaken.


    Quote from Shane D.

    Whether or not the ERV's report is in the courts hands, I think it is safe to assume it says exactly what Rossi claims.


    I am sure it does say exactly what Rossi claims. However (as I said), it is mistaken. Any HVAC engineer or physicist will see that Rossi's claims are absurd. For example, his choice of flow meter and the readings from the meter are ridiculous.


    The issue is not that Rossi said one thing in his reports and another in the lawsuit. The issue is that Rossi's reports are garbage, his measurements were flawed and the instruments unsuitable, and his customer site is an outrageous fraud. There cannot possibly be 1 MW of heat being released there. If this comes to a trial, all of this will be revealed. If there is any justice -- or any sanity -- he will lose.

    Quote from frankwtu

    That is pretty conclusive to me.


    I think there's been a misunderstanding of US federal law in this case. The Judge is merely stating the case as it has been presented to her, without going into the factual merits of individual complaints. I agree that it's weird to see the court parrot the language of the complaint as though it were established as fact. But I think this is something the judge has to do at this particular stage. I assume that nothing can be inferred about the actual facts of the case at this point. This stage dealt only with questions of law, assuming the most favorable interpretation of the plaintiffs' allegations.

    As Eric Walker points out - in a motion to dismiss the judge is to assume that everything in the plaintiff's claim is fact, so this does not at all indicate that the judge has seen the ERV but is rather the judge assuming that what Rossi claims the ERV report says is fact.


    This whole thread is incredibly misleading...

    Guest


    So What now?


    It seems to me that IH have no alternative, given the Judges confirmation of the ERV reports 'successful conclusion' to challenge the ERV report's conclusions. Whilst there are a number of contributors on this forum who may have very legitimate reasons for believing the report is less than 'sound' I think it will be quite a challenge to convince a Jury with 'expert witnesses' who are 'independent' and 'expert'.


    All the accusations levelled at Rossi and Penon will likely to be levelled at IH's expert witnesses. Regardless as to the 'truth' this will be an almost impossible task for IH. Why, the Jury will ask, when the ERV first certified the E-Cat Unit to report he was satisfied each of the Validation requirements within the Validation Test period, and IH paid Leonardo the second payment of $10,000,000.00; was this so different when the $89 million became due on the completion of the final 'successful' ERV report when there was an improvement in the performance of the E-cat during the test.


    Best regards
    Frank

    Quote from JedRothwell

    The issue is not that Rossi said one thing in his reports and another in the lawsuit. The issue is that Rossi's reports are garbage, his measurements were flawed and the instruments unsuitable, and his customer site is an outrageous fraud. There cannot possibly be 1 MW of heat being released there. If this comes to a trial, all of this will be revealed. If there is any justice -- or any sanity -- he will lose.


    Don't jump through the window. IH will not open their arms, they might well be out of money that time...


    As Alain said, repeating my earlier comment.., can You show us, that he all time had to deliver 1 MW??

    Wyttenbach


    Quote from Wyttenbach

    As Alain said, repeating my earlier comment.., can You show us, that he all time had to deliver 1 MW??


    I don't think Jed can; the contract said COP greater than 6, which the Judge has now confirmed the ERV report shows and that this triggers the requirement for IH to pay Rossi $89 million. Nothing whatsoever about 1MW, so Jed is wrong again.


    Best regards
    Frank

    Quote from frankwtu

    the contract said COP greater than 6, which the Judge has now confirmed the ERV report shows and that this triggers the requirement for IH to pay Rossi $89 million. Nothing whatsoever about 1MW, so Jed is wrong again.

    This thread and this post are totally nuts. Someone does not know how to read. This is from the Order:

    Quote

    On February 15, 2016, the Guaranteed Performance Test successfully concluded. (See id.
    ¶ 71). The E-Cat Unit successfully operated for over 350 days out of a 400-day period at a level
    substantially greater than the level achieved during the Validation Test. (See id.). On March 29,
    2016, the ERV published a final report, confirming the E-Cat Unit satisfied all the performance
    requirements imposed by the License Agreement, including the requirement the E-Cat Unit
    produce energy at least six times greater than the energy it consumed. (See id. ¶ 72).


    Notice that each comment is sourced. "id." is for "ibid," she has been citing the Complaint. So, from Section 72 of the Complaint:

    Quote

    72. On or about March 29, 2016, the ERV published his final report regarding the
    operation of the E-Cat Unit during the Guaranteed Performance test. In the ERV's report, the ERV
    confirmed that the E-Cat Unit had satisfied all of the performance requirements imposed by the
    License Agreement including, but not limited to, the requirement that the production of energy
    was at least six (6) times greater than the energy consumed.


    As required by law, and as she notes when she starts out, she is assuming everything in the Complaint is true (narrow exceptions are possible, where something is internally contradictory, and an Exhibit can supersede the Complaint, but that's about it.) So here she is just quoting the Complaint, condensing it a little.


    It's meaningless, and the idea that she would be looking at any evidence (like the ERV) that is not formally entered shows a radical misunderstanding of U.S. court process. She would avoid it. If she sees a news report on the case, she will deliberately avert her eyes. Etc.


    That is why the Planet Rossi idea that "FUD" was being spread to try to influence the case was so insane. Judges will studiously avoid all this fluff. If someone wants to get information to the judge, they will need to submit it formally and it will become part of the record.

    Quote from JedRothwell

    I believe the ERV claims the COP is 50, not 6. I think the claim of 6 came from the documents Rossi filed with the lawsuit. So the judge may not have seen the ERV.

    You can rely on the judge not having seen the ERV report. If someone tried to show it to her, she would push it away. But nobody will. I didn't find a case, but it could be considered obstruction of justice, just like presenting arguments to a jury outside of the court process could be.

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