Quote from JedRothwell

Question 1

I see you start writing as Weaver...... your three questions are without any meaning. If you subtract 10% to the flow this does not mean that your data are not reliable. It just mean that you want to obtain a sure lower limit for the energy produced. If your measure was 100 you say "my measure is for sure grater then 90". This is quite an honest position. Of course the Rossi reactor does not resemble any other CF experiment. The others hardly work and produce few watts.

Then you write some disinformation. Probably you are not informed. The reactor was not dissembled. Is still there, sealed upon a request from IH.

Quote from Bob

If the judge does not rule in summary judgment that the case is without merit or evidence, then the judge will dismiss the case. If they do not rule that, then

the lawsuit will go to a jury trial.

Excellent summary, Bob.

Another variant on this that is common is for the Judge to grant 'partial summary judgement', which narrows the case to specific matters of contested fact. The Judge will not rule on (reasonably) contested fact. The reason for this is that's the role of the jury, when a jury trial is requested (and it was Rossi's legal right to ask for a jury trial, which he will get for all aspects of the case where there are reasonably contested facts.)

The Judge can only rule on Summary Judgement (or portions of Summary Judgement) when there are no contested facts. For example, under deposition, Rossi admitted to essentially running JMP. If the judge determines that this is relevant to a ruling of any of the claims or counterclaims, than the Judge can rule based on that, because it is no longer contestable - Rossi said it, IH also said it. On the other hand, Rossi claims that the E-Cat had a second story window vent for the heat. If spoliation does not apply, then the judge is not allowed to rule that there was no second story window vent, regardless of how strong (within reason) the evidence is that there was no actual vent. The 'fact' of whether there was a window vent or not would have to be determined by the jury.

The reason spoliation is so important to the case is that the standard procedure when spoliation of evidence is established is for 'adverse interpretation' of the facts. So if this does occur, where 'adverse interpretation' is applied, the 'facts' are no longer subject to a jury's determination.

My understanding is that in the case of the alleged destruction of data by Fabiani and Penon, 'adverse interpretation' would establish 'as fact' that the E-Cat produced no excess heat, and that there would be no jury decision regarding that 'fact' (from a legal standpoint). Also, regarding the removal of pipes, etc., if that were found to be spoliation, than 'adverse interpretation' would likely establish 'as fact' that the pipe sizes were to small for the plant to have been producing 1MW, with similar legal consequences.

That would then, presumably lead the Judge to toss Rossi's case against Darden as Summary Judgement, since even if estoppel were to be applied, it would be uncontested fact that the E-Cat did not produce excess heat, and could not have met the Performance clause of an 'estoppeled' GPT.

And regarding IH vs. Rossi and Third parties, it would be hard for IH to NOT be awarded at least some damages, since again, the lack of excess heat would be an incontestable legal 'fact'.

That's why the spoliation decision (whatever it is) is so critical to this case (in my opinion).

P.S. To clarify, the 'adverse interpretation' that would generally be applied in this case is stronger than 'no evidence that the E-Cat produced excess heat'. While that would be a devastating conclusion, a typical 'adverse interpretation' ruling would be even stronger: "the evidence shows that there was no excess heat".

Quote from ele

Is still there, sealed upon a request from IH.

Well then, let's turn it back on and have any and all experts take a look at the system without all the fake customers and absent "expert(s) responsible for validation!" But maybe they would have magic devices to divine AR's secret formula from a distance.

IH's men seem very determined when they accuse Rossi of fraud, but as soon as they are forced to swear, they have strong amnesia. Murray does not remember the position of the flow meter, although it has been able to create a "reconstruction of the Plant":

215-3, page 236

"·1·Q.· · Could it have been lower?

·2·A.· · Could the?

·3·Q.· · The flow meter have been lower than --

·4·A.· · Yeah.

·5·Q.· · -- the pipe entrance?

·6·A.· · Possibly, yeah.

·7·Q.· · Okay.· But you don't know one way or another?

·8·You're speculating?

·9·A.· · Yeah, just working from memory, yes.· I don't

10·know.

11·Q.· · Okay."

And Darden does not remember why Ampenergo did not sign the contract ..... but who can believe him? A failure to sign makes you jump a contract worth $ 89M and you do not remember the details? They look really amateur .... maybe just for convenience .....

226-3 pages 4-7

Q.· ·And did they [Ampenergo] ever explain to you why they didn't want to sign this?

A.· ·No, we were -- we were confused about that.

Q.· ·Is there any reason that you're aware of today as to why they would not want to sign?

A.· ·I don't remember the conversations around I think J.T. might have been the one talking to them.

_____________________________________________________________________________

207-21:

Q. Was this the test plan to your knowledge that

would result, the ultimate plan, that was created from this

discussion, that would result in either the payment or

nonpayment of $89 million to Dr. Rossi?

A. It's hard to say because there were emails going

back and -- I mean, you're not showing me a test plan. I

mean, this is not a test plan.

I don't know is my answer.

Now, I will say that I'm sure there's some

document somewhere that outline a test plan that probably

they sent to us and probably that they said, you know,

here's a test plan. And whether or not that test plan is

perfect, I can't say. I don't know.

JT here above seems confused, yet it is the most important argument, on which the whole process is based. Really he can not say if the Doral test was the GPT or not? However, JT talks about an exchange of emails, so it is likely that the subject has been treated in writing, although Darden believes they have only told verbally to Rossi that the Doral test was not the GPT:

226-3 pages 4-7

Q. Did you put that -- that subsequent offer in writing?

A. I don't know.· I mean, it was -- did we say to him in writing somewhere, "We can't build these units.· We want to build these units.· Help us build these units. Let's get something going."· I don't know. But we -- I'm sure that we said to him, "Andrea, the problem is not money.· We're happy to pay money if we have technology that works. We don't have technology that works. Help us get some technology working somewhere and we're happy to pay you some money."

Q. Right. But did you ever say in writing, "Hey, listen, the time for the test has now come and gone.· We need to reach some other arrangement.· We're happy to pay you money, but it's got to be under different terms"?

MR. BELL:· Objection to form.

THE WITNESS:· I don't remember specific writing about that.· You know, we were in the same office so we talked about a lot of this.

Quote from JedRothwell

They reviewed the data thoroughly and decided that their earlier conclusions were incorrect, and there was no excess heat after all. That's all there is to it. In experimental science this happens ALL THE TIME. You act as if it was evidence of double dealing or a crime, or as if there is something unethical about a careful reexamination of data. You don't know the first thing about experiments or R&D.

Mistakes are common in scientific experiments, but it is difficult to get a COP 11 by mistake! As long as IH had to make a good impression with investors, their tests gave COP 5, 9 and 11, then when it was time to pay, there were these experimental errors. Don't you find it a little too convenient?

Quote from PeterMetz

But my arguments have been somewhat general (as has Jed's claim that for all LENR systems if energy input goes down so would COP)

Again, you misunderstand. If electric power input goes down, the overall heat from the system must go down by that amount, at first. The cold fusion reaction does not instantaneously jump to a higher level. It does not do this any more than a burning pile of wet green wood will instantly increase in power. These reactions have built-in latency, or "memory" as Pons described it. They are not stable but they tend to return to the same power level. The reaction might increase gradually as some control parameter is exercised.

Imaginary example for an e-Cat scaled device:

In the morning you have 20 kW input electricity + 20 kW anomalous heat = 40 kW total heat

Input power is reduced to 10 kW. Anomalous heat remains the same. 30 kW total heat.

Perhaps, for some reason, anomalous heat increases. After a few hours it is 30 kW. Total output is then 40 kW again. However, the total energy for the day will be lower. There will be a gap in total energy.

That is, unless Rossi has solved the control problem to an extent far better than anyone and he can instantly turn a reactor output higher or lower. And his control parameter has nothing at all to do with input power. (In other cold fusion reactions, input power is an indirect control parameter. Turn it off, and eventually the reaction peters out, after some latency delay.)

In some of his earlier tests, the reaction seemed to be real and it seemed to be on the verge of going out of control. That looked to me like a real cold fusion reaction. In the 1-year test, the machine produces incredibly stable output and an absolutely steady flow, which looks impossible to me. It looks fake to me. I doubt the instruments showed anything like this.

The flow is another problem. As Murray pointed out, given the geometry of the system, with some reactors shut down, there is no way the flow could be the same. The flow of water is cut off to reactors when they are being taken apart or replaced. There would not be EXACTLY the same flow every day to the nearest ton of water in these circumstances.

Litres/COP[Heat+steam]/degree [to heat tank to boiling] is a unique metric.

Edit: It shows that the efficiency drops dramatically when the tank temperature drops.

Quote from JedRothwell

Again, you misunderstand. If electric power input goes down, the overall heat from the system must go down by that amount, at first. The cold fusion reaction does not instantaneously jump to a higher level. It does not do this any more than a burning pile of wet green wood will instantly increase in power. These reactions have built-in latency, or "memory" as Pons described it. They are not stable but they tend to return to the same power level. The reaction might increase gradually as some control parameter is exercised.

Imaginary example for an e-Cat scaled device:

In the morning you have 20 kW input electricity + 20 kW anomalous heat = 40 kW total heat

Input power is reduced to 10 kW. Anomalous heat remains the same. 30 kW total heat.

Perhaps, for some reason, anomalous heat increases. After a few hours it is 30 kW. Total output is then 40 kW again. However, the total energy for the day will be lower. There will be a gap in total energy.

That is, unless Rossi has solved the control problem to an extent far better than anyone and he can instantly turn a reactor output higher or lower. And his control parameter has nothing at all to do with input power. (In other cold fusion reactions, input power is an indirect control parameter. Turn it off, and eventually the reaction peters out, after some latency delay.)

In some of his earlier tests, the reaction seemed to be real and it seemed to be on the verge of going out of control. That looked to me like a real cold fusion reaction. In the 1-year test, the machine produces incredibly stable output and an absolutely steady flow, which looks impossible to me. It looks fake to me. I doubt the instruments showed anything like this.

The flow is another problem. As Murray pointed out, given the geometry of the system, with some reactors shut down, there is no way the flow could be the same. The flow of water is cut off to reactors when they are being taken apart or replaced. There would not be EXACTLY the same flow every day to the nearest ton of water in these circumstances.

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JedRothwell,

I've always been responding to Murray's statement in Exhibit 5 as has Wong. Here it is:

I'm not disputing anything you've said about LENR reactions but I fail to see how it is even relevant (or even possible to discuss since we don't have that data with regard to Rossi's reactors). Murray is talking about Penon's data. Wong is talking about Penon's data. Penon's data is over an entire day and multiple reactors. You are talking about LENR reactions. And I will repeat, I do not see any problem with Penon's data with regard to the COP changing inversely with the amount of input power for the reasons I've stated. I could be wrong but I haven't seen any convincing evidence including yours to change my mind.

Quote from Bob

That is what the "Summary Judgment" phase of the trial will consider.

Rossi brought the lawsuit -> IH answered

IH brought counter suit _> Rossi / Third Party answered

Discovery phase then occurred where "everybody asked each other what evidence they were going to bring to trial"

There were dates set by the judge on this and it was over several months.

Summary judgement does not happen until after discovery has been closed and the involved parties request it.

Discovery has been completed now and IH has asked for summary judgement on either all or part of the claims, I am not 100% sure.

I think we will see Rossi's suit thrown out shortly, but that is my layman's opinion. And it has so far been asked because of spoliation of evidence from IH.

IH may be "holding back" the signed contract as a fall back, but that is speculation. I would have thought it the number one defense.

If the judge does not rule in summary judgment that the case is without merit or evidence, then the judge will dismiss the case. If they do not rule that, then

the lawsuit will go to a jury trial.

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@Bob,

Thanks for the great summary. I know that some of the claims were thrown out early. Perhaps those were done on a legal basis while the GPT issue is more evidence based.

Quote from PeterMetz

I've always been responding to Murray's statement in Exhibit 5 as has Wong.

Ah, I did not read that one yet, so I cannot respond. I was discussing what Murray told the lawyer in his long deposition.

All else being equal, you would not expect an inverse relationship between input power and cold fusion power. More input power raises temperature and it tends to increase loading, so it usually promotes more anomalous power. It is not a linear relationship, and sometimes additional power has no effect, but I would not expect an inverse relationship. Certainly not every time!

Quote from Pjotr

I don't think that you can say with a 100% certainty that there _never_ was _any_ excess heat.

During the 1-year test I.H. and I are 100% certain there was no significant excess heat. Some of the earlier tests are ambiguous, especially the first Levi test. Most were so badly done you cannot draw any conclusions.

Quote from Shane D.

Would anyone have a master list of each documents content, so that we can go right to it when referenced? Very tedious to weed through it all.

Abd has one:

http://coldfusioncommunity.net…en-docket-and-case-files/

Quote from joshg

So in that case Darden must have told Woodford that they only let Rossi do the test because they had failed in their exhaustive efforts to replicate and this was a Hail Mary with about a 1% chance of succeeding. Oh and would you pretty please give us $50 million?

Isn't that right? And if he didn't, then clearly he mislead them and the Chinese.

If Darden had misled Woodford, I expect Woodford would have cancelled the deal and withdrawn the money. Or filed suit. Woodford has not done that as far as I know, so I am pretty sure the I.H. told them the truth.

I do not know which Chinese you refer to, or what transpired with them.

http://www.cnbc.com/2017/03/29…ouse-into-bankruptcy.html

Huge nuclear cost overruns push Toshiba's Westinghouse into bankruptcy

This is what happens when reactor technology is regulated by the NRC.

Quote from JedRothwell

During the 1-year test I.H. and I are 100% certain there was no significant excess heat. Some of the earlier tests are ambiguous, especially the first Levi test. Most were so badly done you cannot draw any conclusions.

This is very surprising. How come that IH could begin to replicate significant excess heat back in 2013, with reactors they built themselves, then have lost that knowledge over the course of two years as research and trials progressed?

Quote from barty

If Rossi's IR measurement was part of the replication protocol it's obvious that they may have measured similar values.

Exactly. - And keep in mind that Rossi was IH's "chief scientist" at that time (fall 2013), and supposingly stationed together with Fabiani in Raleigh - and "running the show".

I wouldn't expect that IH had much of own inhouse experts at this early days.