Rossi vs. Darden developments [CASE CLOSED]

New Documents. As always, thanks Eric!

193 - Notice of Hearing - today (2017-03-23: 2:30pm) IH has a long list of objections to discovery regarding Rossi and JMP. They allege inappropriate lack of knowledge and refusals to answer questions in Corporate depositions, answers to interrogatories, and delays in discovery production by Rossi and Johnson.

194 - IH files a Motion for Sanctions against Rossi and Third Parties for Spoliation of Evidence

IH alleges that:

- Ross and Johnson knowingly destroyed the heat exchanger located in the "customer's" area and the pipe to it

- Rossi, Johnson, Penon and Fabiani destroyed email communications between each other regarding the E-Cat data and response to IH's visits.

194-01 through -16: Exhibits supporting alleged spoliation

(Note: I see no [Proposed] Order)

195 - Rossi files a Motion to Seal their: (1)Motion for Partial Summary Judgment and (2) Daubert Motion re: IH's Experts

Comment: Again? Do they really think Judge Altonaga is happy to oblige their sealing request based on recent rulings?

195-01 [Proposed] Order

196 [missing] Probably this is Rossi's Motion for Partial Summary Judgement?

197 - IH files a Daubert Motion to exclude the expert testimony of Dr. K. Wong (supportive of Rossi). IH alleges that Wong had no direct knowledge of the E-Cat, could not reliably state that a COP is an appropriate metric in this setting, and could not reliably testify about whether the warehouse could safely dissipate 1 MW of heat in the customer's side.

197-01 through 03 Exhibits

(Note: I see no [Proposed] Order)

198 [missing]

199 - Third Parties (JMP, Johnson, Bass, Fabiani) file a Motion to Seal their combined Partial Summary Judgement. Comment: see above regarding the seeming futility of Sealing requests to Judge Altonaga.

200 [missing] - Probably this is Third Parties combined Motion for Partial Summary Judgement?

201 - IH files Motion to Seal. Unlike Rossi and Third parties motion, this motion lists 5 specific exhibits that IH is requesting the court seals:

1) Hand written notes of Craig Cassarino of Ampenergo (IH says that these notes contain confidential information)

2) Ledger of payments from IH to Ampenergo and Rossi (IH says these payments are confidential)

3) IRS form 1120 for Tax Year 2012 of Leonardo (Rossi) which Rossi provided as 'confidential'

4) IRS form 1120X for Tax Year of 2013 of Leonardo (Rossi) which Rossi provided as 'confidential'

5) IRS form 1040 for Tax Year 2013 of Rossi which Rossi provided as 'confidential'

Comment: These seem reasonable. But if Judge Altonaga denies IH's Motion, we get to see Rossi's taxes.

201-01 [Proposed] Order

202 [missing]

203 - IH files Motion for Summary Judgement (Responses due 2017-04-05) Comment: Here are all 30 pages. This will take some time to read, summarize and analyze.

Edit: 204 - 206 [restricted] we'll have to wait and see if these get posted.

207 - IH's statement in support of Motion for Summary Judgement Comment: Here are 15 additional pages supporting IH's Motion for SJ

207-01 through 207-75: Exhibits Comment: Wow, that's a lot of exhibits! Dewey was right, this is a boatload.

Quote from sigmoidal

Note: I see no [Proposed] Order

It seems to have been omitted, either during the filing or by the clerk.

Sure is taking you guys a long time to find the Penon report -197, exhibit 3.

Eric - Thank you for your service in making these docs available to those who are interested. You need to open a gofundme or something like that so that folks can send you donations to help cover your document cost. Today has been expensive in that regard and the fun is not over yet.

Alainco - P.R. EBN is Planet Rossi Emergency Broadcast Network. The sirens ran into the evening when they broke down so they have no idea that another round of truth and reality is inbound.

Exhibit 207-61 is sickening.

Quote from Dewey Weaver

Sure is taking you guys a long time to find the Penon report -197, exhibit 3.

Thanks. There is so much stuff, it is hard to sort out!

And here I thought I was going to get something done today.

The IH SJ motion summarises the stuff we know, which is pretty compelling on the legal aspects of the Rossi Compaint. They ask for all counts of this to be refused and I'm reasonably sure they will be.

More interesting, we have some additional information about the request for partial SJ in IH favour on the fraudulent inducement etc counter-plaints. I'd not expected these to work for SJ but I see from the evidence referenced in the IH Motion that this might well work. For SJ the facts must be undisputed so that judgement can be made as a matter of law. That is a pretty high hurdle! Here are the quotes from the Motion that I found gave us new info (maybe I was just not paying attention before, but I think this is likely discovery etc that we have not yet seen).

Quote

For example, the 1 MW Plant was designed to produce steam, yet Rossi and Leonardo removed the steam trap and condensate line placed on the pipe intended to carry the steam out of the 1 MW Plant. See id. These devices would have helped measure whether the 1 MW Plant was producing pure steam as claimed or just water or a combination of water and steam.

This has long been rumoured. IH have hard evidence of this, which it seems is not factually disputed.

Quote

Fabiani (on behalf of USQL), along with Rossi (on behalf of Leonardo and J.M. Products), also removed, modified, or destroyed data and equipment from the Doral facility following the completion of the purported “guaranteed performance test” without notifying or obtaining the consent of Industrial Heat or IPH. SOMF ¶¶ 37, 104, 105. All of this, of course, was on top of Fabiani and USQL providing fabricated data to Industrial Heat and IPH during the purported test, as noted already above.

Again rumoured. Again it seems no dispute.

Quote

Thus, upon termination of the contract or upon earlier demand by Industrial Heat, the contract required the USQL Defendants to provide Industrial Heat with all data and other documents they “use[d] or prepare[d] or c[a]me into contact with” in connection with the services they provided during the testing of the 1 MW Plant. Id. Such documents are the “sole property of Industrial Heat” or are specifically deemed contracted for as a part of the services provided. Id. It is not disputed that the USQL Defendants refused to provide Industrial Heat with data and documents to which it was contractually entitled, despite repeated requests to do so. On February 23, 2016, Fabiani acknowledged that the USQL Defendants would provide Industrial Heat with “all electrical and thermal data of the system throughout the period of the test” and an “official report to bring to light all the flaws and functional deficiencies of the system,” which would also mention all “plant stop periods (total or partial)” and the reasons therefor. SOMF ¶ 96 & Ex. 70. Fabiani delivered no such data and documents to Industrial Heat. Industrial Heat repeatedly requested from the USQL Defendants copies of the promised raw thermal and electrical data as well as the final report relating to the testing in Doral. See SOMF ¶¶ 97-98. Industrial Heat also requested flow meter records the USQL Defendants represented they had. Id. Notwithstanding Industrial Heat’s repeated demands for the USQL Defendants to provide it with what the USQL Agreement made Industrial Heat’s sole property, the USQL Defendants refused. See SOMF ¶ 99. Their actions breached Section 6 of the USQL Agreement. Additionally, Fabiani testified that he had other relevant documents and data that he did not provide to Industrial Heat, including data from thermocouples that were installed on individual E-Cat reactors in the 1 MW Plant, and e-mails to Penon that contained data about the operation of the 1 MW Plant. See SOMF ¶ 104. By contract, these documents and data were the “sole property” of Industrial Heat and needed to be turned over to Industrial Heat no later than “[u]pon termination of th[e USQL] Agreement.”

This is basically about Fabiani (USQL). IH have presented factual evidence he broke their contract which is not disputed (they claim here). The fact that these breaches were in service of a fraudulent plan to misrepresent GPT performance is perhaps questionable - but it seems a real prospect. If the fraudulent plan is agreed in SJ then this looks like having good prospects? I'm reluctant in being too definite here since the law is a twisty thing...

From 207-61:

Yeah, well, everything that came back as

23 condensate needed a vessel to flow into, and that was

24 done away with altogether. Everything came back into a

25 smaller tank that was inside the unit, and the larger

Page 89

1 tank, which originally was going to be condensate

2 return tank, and then we were going to pump the water

3 back into the units. That ended up being -- we built a

4 big stand a little taller than this table, really heavy

5 duty stand out of wood to support that large tank full

6 of water, which this thing held, I forget how many

7 gallons, 55-gallon drums, it probably held 6, 800

8 gallons or more, maybe a thousand gallons of water,

9 which is substantially heavy. But it had to be up so

10 gravity could allow it to flow into the system.

11 So Dave Perry come down one time to check

12 us out and then help with the design or that stand, if

13 you will, and then we just attached a rubber hose into

14 the water fill inside and allowed gravity to feed it.

15 This was based on Andrea.

16 Q. Other than that condensate reserve tank,

17 what other things did Andrea demand be changed from

18 your design layout?

19 A. There was -- man, there was so many. The

20 size of the pipe that brought the condensate back, that

21 ended up -- we ended up moving that frigging hole, and

22 that thing ended up leaking, and he hired another

23 company, God, I can't remember the name of them guys.

24 I want to say the one guy was John that come over, but

25 he hired another company to come in and do a lot of the

23 (Pages 86 - 89)

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3 Q. And you had helped prepare the design

4 layout, correct?

5 A. True. It was mostly T. Barker. He knew

6 how things had to be. I just went there and gathered

7 footages and measurements, and then we determined where

8 exactly in there things need to be placed. Of course,

9 all that was in vain.

10 Q. Okay. Now, you say it was in vain. Why

11 was it in vain?

12 A. Because when I got there and had my little

13 layout there and showing basically where the condensate

14 return take, which was going to sit over on one side

15 had to be, Andrea informed me that he was the director

16 on this site, and we're not using that frigging tank,

16 Q. Other than that condensate reserve tank,

17 what other things did Andrea demand be changed from

18 your design layout?

19 A. There was -- man, there was so many.

Case 1:16-cv-21199-CMA Document 207-61 Entered on FLSD Docket 03/23/2017 Page 6 of

23

CONFIDENTIAL

Page 90

1 plumbing, and they made several modifications.

2 Q. Okay. I understand that -- well, did you

3 document these modifications?

4 A. No.

5 Q. Why not?

6 A. It ain't electrical.

7 Q. Did anyone from IH document these

8 modifications?

9 A. No.

10 Q. Why not?

11 A. They were Andrea's.

12 Q. Okay.

13 A. I mean, these are just basic gravity. I

14 mean, water has got to go down. It's got to flow

15 downhill. The way the thing initially was setup and

16 laid out, when the one tank wasn't utilized on the

17 floor over there, you won't use that at all, and then

18 he routed the condensate line directly straight in a

19 the smaller tank inside. Well, that caused some flow

20 issues and some problems, and Andrea made those

21 engineering changes, and we just supported him and made

22 it, you know, and made it work, got to where we made it

23 work.

24 Q. But did you express disagreements with

25 those changes?

Page 91

1 A. No, I didn't care. They paid me. I do

2 what I'm told.

3 Q. Okay. Do you know if anyone from

4 Industrial Heat said hey, we don't think these changes

5 are good or hopeful?

6 A. T. Barker pitched a bitch a little bit,

7 because he doesn't follow his plan at all. Well, he

8 followed it, but not exactly, but, you know, it didn't

9 matter. Once again, once it got to Florida, this is

10 Andrea's thing and --

11 Q. Okay. So we have the condensate reserve

12 tank, we have the size of the pipe to bring the

13 condensate back, was there anything else that you

14 remember specifically, and I'm trying to get a list of

15 things but --

16 A. As far as issues and problems, the hoses

17 kept coming off.

18 Q. Let's distinguish, I'm not asking you about

19 issues and problems right now. Right now I'm asking

20 about modifications to the design layout plan that you

21 and T. Barker put together.

22 A. That's pretty much the physical locations

23 of everything. I mean, once again, our plan wasn't

24 used at all, really. When it got down there, Andrea

25 took over.

Page 92

1 Q. Okay. But I'm trying to identify

2 specifically what the issues were.

3 So you mentioned two. You said you think

4 there were many. I'd like you to identify as many as

5 you can.

6 A. Some of the piping in there we had to make

7 changes to that, because the big Frankies as well as

8 the E-CATs were all grounded electrically through the

9 piping, and that presented major issues when we tried

10 to start up, because of the faults of the individual

11 heating elements. Many of them were shorted at some

12 level to ground, and then when they got a good

13 electrical ground, it caused them to burn up.

14 So they had to make plumbing modifications

15 to even allow it to operate, because it was not

16 electrically sound.

17 Q. Were those modifications made?

18 A. Yes, had to make those changes. They

19 wouldn't operate electrically without those changes. I

20 mean the ground system, the ground, you know, the low

21 potential path to earth, to ground was causing major

22 issues.

23 Q. Okay. Anything else that you recall

24 different from your design layout?

25 A. No, most of the rest was pretty

Page 93

1 straightforward.

2 Q. Okay. Approximately when did you get the

3 equipment in Doral up and running for the first time?

4 A. End of February, somewhere around the end

5 of February, 27th, 26th, somewhere around in there.

6 Q. Was there some agreement amongst the

7 parties -- when I say the parties, I mean T. Barker,

8 Dr. Rossi, J.T. Vaughn, that the tests, the 350-day

9 test had begun?

10 A. Yes, I guess there was, but I don't know,

11 they didn't tell me.

12 Q. They didn't tell you, hey --

13 A. No, I knew when the plant got on line as

14 far as actual numbers that corresponded between Andrea

15 and, you know, IH. I didn't, you know.

16 Q. You mentioned earlier in our discussion

17 someone named Fabio Penon. Do you know who he is?

18 A. Oh, yeah.

19 Q. Who was he?

20 A. He's the guy that brought the kiss of a

21 lady to me. The smile. He remembers the kiss of a

22 woman, the kiss of the lady.

23 A really cool Italian cookie. I don't know

24 guys. I never -- first time I met Penon he brought the

25 whole box of these really cool cookies, and we sat down

24 (Pages 90 - 93)

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3 Q. Okay. Do you know if anyone from

4 Industrial Heat said hey, we don't think these changes

5 are good or hopeful?

6 A. T. Barker pitched a bitch a little bit,

7 because he doesn't follow his plan at all. Well, he

8 followed it, but not exactly, but, you know, it didn't

9 matter. Once again, once it got to Florida, this is

10 Andrea's thing and --

@Alain

Quite likely no trial I'd have thought.

I think you testified that you knew that

14 Mr. Fabiani and Mr. Rossi or Dr. Rossi had a prior

15 relationship, is that correct?

16 A. Oh, yes.

17 Q. And how did you find that out?

18 A. I met Andrea's wife, Maddalena. I've met

19 his mother-in-law. I've met members of Andrea's family

20 and Fulvio's talked with me many times about the

21 relationship he had growing up with Maddalena, because

22 they've known each other a lot longer than Andrea and

23 Maddalena maybe have known each other. But I know

24 Fulvio and Maddalena had a long relationship since

25 Fulvio was very little, you know, he has known

53 (Pages 206 - 209)

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1 Maddalena, so, and now Andrea and her are married. I

2 mean, I seen them. They come to the plant pretty

3 regularly. I got to see them and, so yeah, so I knew.

Jed calls 207-61 sickening. I tell you what, that Barry West is one endearing guy.

One of my central interests is trying to find out about the flow meter configuration.

Here is what Penon's report says on the topic:

"flowmeter for measuring the flow rate of cooling water inlet into the shelter. It is located along the line of return of the water, between the plant of the Customer and the 1 MW E-Cat and it is entirely filled with water

...
The water meter measures in m3 without decimal"

Unfortunately, I don't see the specific model listed in the report. Still haven't combed through the voluminous papers on the docket today to see what else there is. Penon claims the return pipe was full with water. Jed says the pipe was return pipe was only partially filled. Hopefully there is some kind of photographic evidence one way or the other.

On the DN40 pipe size claim, nothing in the Penon report goes into such specificity. Hopefully that issue is explored in this document dump as well.

@IHFB

The key issue is the condensate trap - removed by Rossi - without which I thought even you agreed the phase change measurement cannot be safely made.

The [EDIT: exit] pipe size is a red herring that obsesses you but is only relevant to this case if it really is DN40, and the bad faith of the measurement cannot otherwise be proven.

Notice that for this stage (SJ) we cannot have expert testimony (which would be contested) even if it is pretty clear. We can only have uncontested facts.

From 207-35

How many other individual inventors is Industrial Heat funding?

Bob Higgins remains independent - he is a good man, an excellent engineer and brilliant researcher!

The field is very fortunate to have his ongoing contributions, experience, knowledge and intellect.

Quote from THHuxleynew

@IHFB

The key issue is the condensate trap - removed by Rossi - without which I thought even you agreed the phase change measurement cannot be safely made.

The return pipe size if a red herring that obsesses you but is only relevant to this case if it really is DN40, and the bad faith of the measurement cannot otherwise be proven.

Notice that for this stage (SJ) we cannot have expert testimony (which would be contested) even if it is pretty clear. We can only have uncontested facts.

Display More

THH, I'm confused by your comment. What condensate trap are you referring to? Can you point to an Exhibit / page / line number? Barry West talks about a "trap" in 207-61 page 144-145, when referring to rust from the "big Frankies" entering the pipes. Is that what you are referring to?

As for the DN40 pipe, the question is whether Murray's Exhibit 5 claiming that the exit pipe from the 1 MW plant being DN40 is true. I'm not referring to the return pipe size. And neither was Murray.

Quote from IH Fanboy

THH, I'm confused by your comment. What condensate trap are you referring to? Can you point to an Exhibit / page / line number? Barry West talks about a "trap" in 207-61 page 144-145, when referring to rust from the "big Frankies" entering the pipes. Is that what you are referring to?

As for the DN40 pipe, the question is whether Murray's Exhibit 5 claiming that the exit pipe from the 1 MW plant being DN40 is true. I'm not referring to the return pipe size. And neither was Murray.

207-61 p144

This is perhaps the best exchange that I've read so far:

2 Q. Mr. West, my name is Fernando Aran. I'm an

23 attorney in Miami, and I represent Jim Bass. I also

24 represent Henry Johnson and JM. How are you this

25 afternoon?

Page 175

1 A. Pretty good, and yourself?

2 Q. Not bad for a short overweight fellow.

3 A. I understand.