As said...off to trial we go! I would venture to guess that had we known when Rossi first filed suit, that JMP was a ruse...there was no customer, no product, no need for steam, that Rossi dismantled enough of the set-up to make it guess work at best as to whether it worked, that Rossi/Penon/Fabiani all destroyed and/or deleted vital data, Fabiani would flee to Russia, while Penon would play hard to get...only agreeing to deposition after a plea from Rossi, and then only in a neutral country (DR), that most here -even the Rossi fans, would opine that this case would never make it to a jury.
But it is, and that is kind of spooky when you think about it. If it could happen to savvy investors like IH, than anyone could be lured into such a trap by someone like Rossi, finding themselves caught between the devils choice of a jury trial (gulp), or settlement. No doubt, IH's experience will not be lost on others who dare venture into similar ventures. Maybe for the good, as there never should be a substitute for a real, honest to goodness, DD. Had IH stood their ground on "getting one of the big boys" in for the VT, they would not be where they are now. They backed down though, then gave Rossi a lot of rope for the next 3 years so as "not to piss him off", and Rossi took that rope and wrapped it around their neck.
So what will IH's court strategy be? I think it will be layered, and as Sig points out, start with the contractual arguments that this was not a GPT. Not signed, 6 syclinder etc. The deceit surrounding JMP alone is rich and deep, so will no doubt be hammered on. Even the Rossi supporters seem aghast at that, and if they are, a jury will react even stronger.
Then, in no particular order, go on to spoliation, as it will elicit a strong response against Rossi...especially if the judge "granted in part" the portion of 264 where the jury is instructed: "that spoliation of evidence raises a presumption against spoliator". The heat exchanger issue will be about spoliation, and perhaps provide the key to destroying Rossi's case, if the jury is convinced it did not exist, or if it did, could not have worked. Destroy the HE upstairs, and even his own expert Wong will admit that there could not be 1MW. Case over.
Perhaps the biggest challenge for IH, is how they approach the performance of the 1MW. Will they claim it did not work, impossible to know because Rossi/Penon/Fabiani destroyed the data, set-up, and Penon took his instruments to who knows where, or make their case that both are possible? That may confuse the jury though. Risky if you ask me, so I would stick to the spoliation.
Whatever the outcome though, this case will not show the "plant" produced 1MW. Why?...because it did not. That simple. That will leave us to speculate for the coming years (oh boy), as to whether Rossi has, or had a little something no one else has. But under no circumstances will I ever speculate on that damn QX!