Abd Ul-Rahman Lomax: Trying to build defense for Rossi

I'm not going to talk in legal terms about a legal case I do not fully understand. Instead, I'm going to try and convey my thoughts ordinary language.

There are basically three camp's of individuals, each with different mindsets.

The first camp pretty much believes Rossi does not have the ability to produce any significant excess heat -- even there is a slight chance he did long ago. They seem to think that by the time the test in Doral began, Rossi was in all out total fraudster mode: with nothing to offer, no way to produce a watt of excess power, and the goal of perpetuating a total and absolute fraud to obtain 89 million dollars from Industrial Heat.

The second camp thinks Rossi has been able to produce excess heat all along, his knowledge and experience has been growing ever since his earliests tests with Focardi in 2008, and that he fueled and operated the reactors of the one megawatt plant with the specific intent of producing XHE. Despite high probable shenanigans and even some degree of deception/exaggeration that took place, they don't think the entire test was an all out fraud; even if he lied about issues and broke his contract, he didn't sit in the reactor for several hours a day just to twiddle his thumbs and waste time. Regardless of the quantity of excess heat produced, these people don't think he would have baby set reactors that he intentionally designed to be "dummies."

The third camp thinks Andrea Rossi can do no wrong, or are portraying this idea for some strange illogical reason. They think that I.H. is literally the devil incarnate with a desire to suppress LENR forever. They ignore all the signs of oddities taking place during the Doral test and worship the ground he walks on -- or at least act that way on forums and websites.

To sum up my thoughts about these camps, only the second group is reasonable.

Depending on the information Rossi provides (we should make no judgement until he finally reveals his wabbits), he may have no way of refuting at least a portion of the accusations of trickery and deception made by Industrial Heat. This may very well mean that he has little chance of winning the lawsuit and getting a single red cent from Industrial Heat. On the other hand, he may very well provide proof that indicates some level of excess heat (even if only a few reactors remained functional near the end of the test), a real manufacturing process producing an actual chemical product, a contract spelling out the responsibilities of James A. Bass (proving he was hired to do more than speak flat out lies to visitors), and present evidence that his technology does indeed work. For all we know, depending upon the timing, he could drop some hard evidence of excess heat produced by the Quark or other reactor types.

Unless he pulls a monster rabbit like those from, "night of the Lepus" none of this will allow him to win the lawsuit. But by disproving the worst accusations of total intentional fraud from the very start and providing evidence of his technology actually working, he could give himself a PR boost.

Basically, I think he is depending upon a massive stunning revelation at the very end to accomplish his goals -- whatever they may actually be. His best defense as a whole -- which may do nothing to refute many of IH's very specific accusations -- would be to provide monster sized evidence that the E-Cat technology is a reality. If he can make EVERYONE (IH employee, online skeptic, supporter, and fence sitter) pause with their mouth's hanging open, he may be able to use the shock and awe to his advantage.

Many people claim Andrea Rossi is crazy, self destructive, and insane. I don't think he is these things, but I do believe he is eccentric (as many great inventors and scientists are). Nikola Tesla, the greatest inventor in the history of science, was a very weird dude who had an insane fear of women's ear rings and insisted on calculating the cubic volume of his food before meals. It's possible to a certain extent that he doesn't care as much about the result of the lawsuit, as the "out of the blue" spectacle he can produce near the very end of the process. The satisfaction of giving all his detractors "whip lash" from being exposed to the best proof yet of the Rossi Effect could be what he's hoping for.

In conclusion, he may have no defense whatsoever for some accusations, plausible defense for others, and spectacular defense for the reality of the E-Cat.

a reason for posting such big comments, which do nothing but simply just relepeat, what You aready told to Abd in almost ALL the other subs here, too ?

Quote from AlainCo

Recent leaks by Jed & Abd seems to even repor that after ICCF19, IH became very annoyed by the situation and raised concern...
Is it possible to raise an estoppel defense if the partner raised sincerely tons of warning, and proposed to improve the situation with some apparent sincerity...

To correct one thing, I don't have private information about this situation, and wonder, myself, when IH first raised an objection. However, the Rossi exclusion of Murray, and the possible exclusion before that of McLaughlin (when accompanied by Darden? Or did Darden just propose it?) would be points where conflict became obvious. However, they might not have formally objected. Another point where I could suspect some, ah, conversation, would have been the only visit documented after the Rossi exclusion of those "not already agreed" that of the two Woodford representatives, accompanied by both Darden and Vaughn, in August.

All this was after ICCF-19. So the only clear evidence I have is Rossi's description of the "letter" at the beginning of December, where IH was totally explicit: not a GPT and no ERV agreed.

Jed has had much more in the way of confidential information than I. He gets around more, basically. Jed is, my experience, trustworthy on fact, and honest about his opinions. Don't confuse the two! He is highly informed, often, though he also makes some mistakes (as do most of us). So I read Jed with care, distinguishing fact from opinion. It's not difficult, and where it's obscure for some reason, he answers questions and clarifies.

I have only met an IH representative face-to-face once, and I didn't know anything about IH at the time and it wasn't mentioned, as far as I recall, it was on a bus at ICCF-18, where I had a press pass, thanks to the kindness of Michael McKubre and Robert Duncan. I have talked on the phone with someone from IH, once, now. I don't pry for secrets, but I also offer confidentiality, and, in spite of what Steve Krivit has claimed, I'm trusted, apparently. Still, I have no information on the particular point, when IH did actually object first, other that what is above, and that's public now.

As to estoppel, no. The establishment of a GPT by the kind of vagueness asserted by Rossi is inadequate to create a payment obligation. If Rossi had been open and clear, using "GPT" and "ERV" in anything other than an off-hand and unclear way, it could be different. Rossi could claim estoppel. Remarkably, he didn't, in his Complaint, but the Judge cut him some slack and inferred it herself. She wanted to allow Discovery to proceed, perhaps it would turn up some evidence. Remember, this was before IH had Answered with the pile of exhibits and the counter-suit. It is still possible, in theory, that Rossi could show a clear agreement by some evidence. I call that a Wabbit, it would transform the case if plausible, making it more likely that it could proceed to trial.

The defense I wrote as a possibility would probably not allow Rossi to win $89 million, but could create plausibility that there was no willful fraud. This could create a possible exit strategy.

Quote from damn_right _man

a reason for posting such big comments, which do nothing but simply just relepeat, what You aready told to Abd in almost ALL the other subs here, too ?

This is a new thread, and repeating arguments in a new thread is not at all improper, even normal, and a user will become practiced at writing by doing this and may learn something new from each opportunity. And the length is irrelevant. Too long for you, don't read it. You are not obligated, and tl;dr comments -- if made, this wasn't strictly one -- typically add nothing, are more like trolling.

Quote from MrSelfSustain

I'm not going to talk in legal terms about a legal case I do not fully understand. Instead, I'm going to try and convey my thoughts ordinary language.

There are basically three camp's of individuals, each with different mindsets.

Camps. ... in ordinary language. While acknowledging more than simple polarity, SS still managed to exclude the middle.... (Division into categories, strictly, doesn't exist in Nature. Everything is the same, and everything is unique. Ah, Reality is truly fun!)

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The first camp pretty much believes Rossi does not have the ability to produce any significant excess heat -- even there is a slight chance he did long ago. They seem to think that by the time the test in Doral began, Rossi was in all out total fraudster mode: with nothing to offer, no way to produce a watt of excess power, and the goal of perpetuating a total and absolute fraud to obtain 89 million dollars from Industrial Heat.

"even if there is a slight chance." or something like that. This is an extreme description. It's a cartoon caricature of Rossi. From my point of view, the camp view is a possibility consistent with the evidence, but it more or less requires a form of insanity, since, as Jed points out, the apparent fraud was so obvious.

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The second camp thinks Rossi has been able to produce excess heat all along, his knowledge and experience has been growing ever since his earliests tests with Focardi in 2008, and that he fueled and operated the reactors of the one megawatt plant with the specific intent of producing XHE. Despite high probable shenanigans and even some degree of deception/exaggeration that took place, they don't think the entire test was an all out fraud; even if he lied about issues and broke his contract, he didn't sit in the reactor for several hours a day just to twiddle his thumbs and waste time. Regardless of the quantity of excess heat produced, these people don't think he would have baby set reactors that he intentionally designed to be "dummies."

This camp is using the anti-insanity defense. "He'd have to be crazy to ...." But they accept possible "frauds" or violation of contract. SS thinks this is the only reasonable camp.

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The third camp thinks Andrea Rossi can do no wrong, or are portraying this idea for some strange illogical reason. They think that I.H. is literally the devil incarnate with a desire to suppress LENR forever. They ignore all the signs of oddities taking place during the Doral test and worship the ground he walks on -- or at least act that way on forums and websites.

This camp has been called "Planet Rossi." It is, itself, a caricature, and the population of this "Planet Rossi" seems to be shrinking. However, there are certain Planet Rossi memes, and we are seeing anons show up here with them. We also see these memes in comments on Rossi's blog, and some of the memes, Rossi has owned and created. He is strongly suspected of using sock puppets on his blog, and there are, I'll agree, clear signs of it, and he is suspected of using some socks elsewhere, but the memes are the primary evidence, and that could be simply strong following.

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To sum up my thoughts about these camps, only the second group is reasonable.

The division into three groups as described certainly does not include all writing about Rossi. The two allegedly unreasonable camps are described with "belief." The allegedly reasonable camp is described with "thinks." In other words, the division exists in SS's mind, before the explanation, it's totally set up. If we want a fast path to understanding, start by discarding all beliefs. This is a skeptical position. Then, from a skeptical examination, one may form hypotheses, ideas. These are not "fact," because they are created by analysis. They don't exist in nature, except in the "natural mind." I.e., humans create these. We use these ideas in ordinary life. We could not survive without them. Yet they are not "truth." They are merely useful, sometimes so highly useful that they are universally accepted. If everyone agrees on something, does that make it "truth"? Isn't that an interesting question? I think so! It is actually ancient, and so are possible answers.

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Depending on the information Rossi provides (we should make no judgement until he finally reveals his wabbits), he may have no way of refuting at least a portion of the accusations of trickery and deception made by Industrial Heat.

SS proposes a "should" that basically amounts to "everyone should think like me!" However, what's the basis for this? What is the goal and guiding principle, and do we have any choice in the matter? It's rather easy to observe, if one looks around, that people create "should" and "should not" to guide or even dominate behavior. It may be necessary, but it is also coercive, and the necessity fails when peer relationships are involved.

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This may very well mean that he has little chance of winning the lawsuit and getting a single red cent from Industrial Heat. On the other hand, he may very well provide proof that indicates some level of excess heat (even if only a few reactors remained functional near the end of the test), a real manufacturing process producing an actual chemical product, a contract spelling out the responsibilities of James A. Bass (proving he was hired to do more than speak flat out lies to visitors), and present evidence that his technology does indeed work. For all we know, depending upon the timing, he could drop some hard evidence of excess heat produced by the Quark or other reactor types.

I've repeated this many times. Whether or not Rossi can produce excess heat is irrelevant to Rossi v. Darden. As well, whether or not the Doral plant produced XP is only relevant if the GPT was legitimately set up. What the Quark-X can do is utterly and completely irrelevant except that Rossi keeping it secret from IH could be a contract violation. At this point, the most likely outcome of the case, as far as I can see, is that it will not provide us with the information about plant performance that many of us crave, because it is so likely irrelevant. Jed points to evidence that there was no XP. However, examined closely, this is evidence that XP was not large, if it existed. Yes, if Rossi produces a Wabbit, and evidence that JM Products was real and actually used the power would be a Wabbit at this point, the case could proceed.

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Unless he pulls a monster rabbit like those from, "night of the Lepus" none of this will allow him to win the lawsuit. But by disproving the worst accusations of total intentional fraud from the very start and providing evidence of his technology actually working, he could give himself a PR boost

.
Not impossible. Just unlikely. What camp does that put me in?

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Basically, I think he is depending upon a massive stunning revelation at the very end to accomplish his goals -- whatever they may actually be. His best defense as a whole -- which may do nothing to refute many of IH's very specific accusations -- would be to provide monster sized evidence that the E-Cat technology is a reality. If he can make EVERYONE (IH employee, online skeptic, supporter, and fence sitter) pause with their mouth's hanging open, he may be able to use the shock and awe to his advantage.

Oh, that would be so much fun! However, legal process is designed to avoid this. If he deliberately withholds information in discovery, under oath, he could end up with prison time. So could Johnson, Fabiani, Bass. And Penon if Penon is ever served and maintained in the lawsuit. (And Darden and Vaughn as well, to be sure.)

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Many people claim Andrea Rossi is crazy, self destructive, and insane.

Including long-time friends.

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I don't think he is these things, but I do believe he is eccentric (as many great inventors and scientists are). Nikola Tesla, the greatest inventor in the history of science, was a very weird dude who had an insane fear of women's ear rings and insisted on calculating the cubic volume of his food before meals.

Yes. Tesla was downright weird. He accomplished some amazing things, but was also stuck in his own ideas. See https://en.wikipedia.org/wiki/Nikola_Tesla/Beliefs (He is quoted as saying something about God there, and he was quite advanced in his view, in some ways, but rigid and trapped in others. I would say that he was probably quite aware of the limitations in the thinking of others, but possibly not of his own. He may not have had any peer capable of guiding him ab initio -- or if he did, he didn't recognize it.

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It's possible to a certain extent that he doesn't care as much about the result of the lawsuit, as the "out of the blue" spectacle he can produce near the very end of the process. The satisfaction of giving all his detractors "whip lash" from being exposed to the best proof yet of the Rossi Effect could be what he's hoping for.

If so, though, he is wasting a lot of his own money and that of others, for a private and personal purpose.

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This is a new thread, and repeating arguments in a new thread is not at all improper, even normal, and a user will become practiced at writing by doing this and may learn something new from each opportunity. And the length is irrelevant.

I think, this is pretty close to spamming and being self-assured, that once's one opinion must be repeated all over all subs. Especially, You, Abd, can save a lot of time, effort and nonsense in either all the time defending Your opinions of an old thread in a new one and on the other hand, just spamming repeatedly.

Quote from JedRothwell

You say "we should make no judgement." Anyone who has done this kind of test cannot help but make judgement. Suppose I showed you an empty cardboard box and I said: "this is a nuclear reactor." You would instantly conclude that I am crazy. You could not reach any other conclusion, and you could not stop yourself from reaching that conclusion. You would not say, "I'll wait for you to provide proof that is a nuclear reactor before I decide." Rossi's data is as bad as a cardboard box masquerading as a reactor.

"The human being is a meaning-making machine." Essentially, we cannot shut this off. It is going to happen. However, that is not the end of it. We do have choice on what we do with the upwelling "Already Always Listening," it's called. We can recognize it as a product of our past. We can come to understand that this is not where possibility arises, it's just a machine. We do not need to turn what occurs to us into "conclusions," even though we may act on this occurring, and the evolutionary foundation of this instant judgment is obvious: survival. When we see the orange stripes in the jungle, we don't have time to think, "is this really a tiger or just some flowers?" Until we know, we will react, and if we don't, if we take time to reflect and think, it might be the last thinking we ever do.

What Jed is claiming is actually obvious to those with experience looking at experimental data. However, this appearance could be created in various ways. Looking at a proposed way, the same reaction can occur. "Preposterous!" Or .... "Yeah, that explains it!" and which reaction comes up first for us will generally be a product of our past. It is not necessarily a universal. The question here was a challenge to me to think in a different way. How much I succeeded at that, I'll leave to each to consider. But I found it useful as an exercise, and the first thing that it was useful for was to expose, for me, how much judgment I had developed. A lot! That made it hard to come up with ideas and the first draft of the post was, as I wrote, awful, a pile of mealy-mouthed speculations, truly embarrassing. I left it as a draft till the next day, when I rewrote it radically.

This thinking would be, in fact, a necessity not only for Rossi's attorney, but also for the other side, if it chooses to move toward mutual and general benefit as possibly distinct from "winning" by crushing the "opponent," rather than the original goal, which was only "crushing the tests." I do not wish to second-guess IH as to what they will find beneficial for their purposes, and the right of decision on that is theirs, not mine.

I intend to continue to do the bulk of my writing of weight on coldfusioncommunity.net. This is social stuff, chatty, and interactive, or ... reactive! I've been writing this way for many years, and it has served me well, in some ways, and not in others.

Quote from oldguy

I noticed that in one document Rossi requested info as to why IH thought that the research effort in FL was not the GPT

Yes. This is in Document 70-3, Rossi's appeal of IH objections to the a request for production, which copies the requests. The specific requests are

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REQUEST NO. 30: Any and all documents which support and/or pertain to your claim that “Neither IPH nor IH ‘engaged’ Mr. Penon to serve as the ERV for the Guaranteed Performance process, which is a requirement under Section 5.”, (sic) as stated in the letter of December 4, 2015, which has been attached hereto as Exhibit “A”.

REQUEST NO. 31: Any and all documents which support your position that “The project on which Leonardo is currently working cannot be the Guaranteed Performance process set forth in the Agreement”, as stated in the letter dated December 4, 2015 attached hereto as Exhibit “A”.

Notes: We don't have "Exhibit A," Rossi did not attach it to his appeal. For these two requests, IH only repeated a general objection, and agreed to search for documents. In general, it appears that the Magistrate allowed most IH objections, and merely rejected a few general objections and modified some more specific ones. To my knowledge, this is the first public evidence that IH did object more than two months prior to the end of the alleged GPT. We do not know what the Letter was responding to, if anything.

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Is there some request by IH that requests Rossi to produce info as to why he things it was the GPT?

Almost certainly. However, we haven't seen them, and probably won't unless there is an objection and appeal. Discovery results are not submitted to the court, ordinarily. Only where there is an objection. I researched this because there was some mishegas on e-catworld about this, claiming that if an objection is not sustained, it is rejected. It is the opposite. The obligation of someone receiving a proper discovery request is to answer within a certain time or object. If they do either, they are done. Then the requestor may appeal the objection, and if it is not rejected -- "dismissed" -- it stands.

So as to discovery in the other direction, we have Document 75-1, re an IH-requested Magistrate Hearing, which has:
(Remember, "plaintiffs" is Rossi et al, and the Defendants gave "instructions" in their request for production.)

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3. Defendants’ Instruction No. 9: Plaintiffs object to the time period set forth in
Instruction No. 9 on the grounds that any video, photographs, or other responsive documents
and/or information which was “created, recorded or fixed in a tangible medium of expression”
after the conclusion of the Guaranteed Performance Test is not likely to lead to the discovery of
admissible evidence. All of the matters and issues raised by the parties take place before and/or at
the conclusion of the Guaranteed Performance Test in February 2016. Accordingly, any
photographs and/or recordings taken after that time would be completely irrelevant and
impertinent to the instant case, nor could it lead to the discovery of relevant or admissible evidence
as the matters complained of had already concluded.

Request No. 1: All videos, photographs or other recordings of visual images (regardless of
the medium on which the recording is stored) created, recorded or fixed in a tangible medium of
expression on or after January 2, 1015, of (a) the Doral Location (either of the inside or outside of
the Doral Location), (b) some or all of the contents of the Doral Location, (c) any individuals inside
the Doral Location, or (d) events or activities occurring at the Doral Location. This Request
includes, but is not limited to, all of the “movies” and “photos” referenced by Andrea Rossi in his
blog posting of May 1, 2016, a copy of which is attached as Exhibit A.

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This is the only piece of discovery we have seen in the other direction. I find it of interest in this way. First of all, it's trivial to think of possible relevance.

For example, Rossi claimed that there was an active customer manufacturing process going on there, possibly shut down when IH padlocked the plant. If they were working on platinum sponge, that's extraordinarily valuable. Was that and the equipment removed? There was supposed to be a security camera recording everything. What happened after Murray left in February? Are there any photos of the interior of the customer area?

notice that there is no claim of protection, but an answer could have that, so protecting customer privacy would not be an issue. I assume that before requesting a hearing, the attorneys would confer, because hearings are a damn nuisance. So it was important to Rossi to try to avoid showing later images, even though he is very unlikely to succeed, I have difficulty imagining the Magistrate allowing that objection.

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Bottom line- does Rossi have anything that shows acknowledgement and acceptance of the research in Fl was to be the GPT before the effort was started?

While it is possible, it's unlikely, because one would have thought this would have been alleged in the original Complaint, rather than the vagueness alleged. The Second Amendment required explicit written consent to the start of the GPT, which was IH's safety latch.

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I am not sure why people think that Rossi's posting in his own obscure blog is some kind of notice to be used for estopple. It seems he would need to produce some kind of proof of notice and acceptance or at least proof that IH acknowledged that they accept posting in a blog as a way of official communication with Rossi.

There were things we know of in the blog that apparently IH was unaware of. They had no obligation to read it. However, what was in the blog and when? The key word is "Guaranteed Performance Test." There were lots of tests, and it's clear that Rossi considered Doral a kind of test, and he did refer to it as that, in the July email denying Murray entry. That denial, though, would be entirely inconsistent with a GPT, but much more consistent with some other kind of test that Rossi was running with his "customer."

I do not find the words "guaranteed performance test" anywhere in JONP (Rossi's blog) with Google. I do not find "guaranteed performance" until August 2016. I find this from June, 2015:

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Andrea Rossi
June 20, 2015 at 6:34 PM
Bernie Koppenhofer:
We will not push on the market until the test on course with the 1 MW E-Cat working in the factory of IH’s Customer. After that, our problem will not certainly be the competition, but our development: I do not see why we have to help any competitor.
Warm Regards,
A.R.

There is reference somewhere to a 350 day test, and that was mentioned in the Penon proposed protocol. However, this was all framed initially as a sale of power to the customer and an opportunity to show investors what was being done. So perhaps it was a dry run -- a "test" -- for the real GPT? Even if IH read the blog posts, they would not be on notice that Rossi intended to claim this was the GPT of the Second Amendment.