Court Rulings on Some Key Motions in Rossi vs. Darden

The following post has been submitted by Dr. Mike

Court Rulings on Some Key Motions in Rossi vs. Darden

Some important court rulings for several motions in the Rossi vs. Darden court case have been posted on Google Drive:

In Document #303 the court has ruled on the admissibility of expert witnesses.  In summary the court has ruled that both the Smith Report and the Smith Supplemental Report are admissible, and Smith is qualified to give his opinions in support of the Defendants.  However, the court ruled that they will not make a decision on Murray’s testimony until he produces a formal report, which must be filed by 5/31/2017.  (The court’s ruling on Smith’s reports should help Murray write a report that is acceptable to the court.)

The court rulings were not as favorable for the Plaintiff’s expert witness, Wong.  Wong’s first opinion that the “coefficient of performance is a suitable criterion to gauge E-Cat performance” will not be admissible.  Also, Wong’s second opinion that “there are logical explanations for the inverse relationship between the input power into a device and its coefficient of performance” will not be allowed.  (Therefore, the Plaintiffs will have no expert testimony on this subject to counter Smith’s testimony.)  However, the court will permit Wong’s expert testimony that assuming there was a heat exchanger in the Doral facility; there would not have been an unsafe working environment due to too much heat.  While this testimony will certainly be helpful to the plaintiff’s case, it can be anticipated that Wong will also have to testify during cross examination that the facility would be too hot if there were no heat exchanger (based on the questions asked at the deposition).  In my opinion this will make Wong a poor expert witness for the Plaintiffs since he will also be testifying that he never observed any evidence that a heat exchanger existed.

Court rulings in Document #302 are also interesting in that the court has denied motions by the Plaintiffs, the Defendants, and the Third Party Defendants for summary judgments and partial summary judgments.  All issues discussed in the motions will be heard by the jury, and the jury will decide whose arguments prevail on these issues.

My recommendation is that anyone really interested in this case read the actual court rulings and then form their own opinions as to how they think these rulings will affect the case during the trail.

Dr. Mike

  • Kevmo

    Looks like Rossi lost more ground than IH did: ” the Plaintiffs will have no expert testimony on this subject to counter Smith’s testimony.”

  • DrD

    Can any one explain?

    How can the case possibly go-ahead if “COP” as a valid measure of performance isn’t accepted? I assume that’s what it means.

    • GiveADogABone

      On the technical and scientific arguments there is a mass of material that has yet to be placed on the record, beyond the recording of said material in the list of exhibits. My feeling is that the court is disappointed that so many of the facts remain contested at this late pre-trial stage.

      There is a weirdness in here that I think I am just beginning to understand. IH, their lawyers and expert witnesses have little or no scientific and technical understanding of the E-cat that would have allowed them to frame the right questions. Discovery could best be described as bland.

      I feel that Rossi has deliberately withheld rebuttal of scientific and technical fact in Murray and Smith’s depositions. One example: The claim by the defendants that the Law of the Conservation of Energy proves that a CoP greater than one is impossible. The rebuttal of this claim is provided by every operating nuclear power station and exploded atomic bomb. Einstein’s equation E=m.c^2 provides the theory.

      Murray and Smith have opined and will no doubt be examined and cross-examined before the jury. Likewise Rossi will be examined and cross-examined on his evidence and his 695 exhibits, many of which we have not seen. I do not see this part of the trial as an evenly matched contest.

      • DrD

        and energy from isotopic decay if he needs a “milder” example.

      • Dr. Mike

        I agree that there is a lot of material in the long list of Plaintiff exhibits that have not yet been made public, but I don’t believe there will be that much of the scientific nature that can help Rossi’s case wit respect to the jury. I also agree that Rossi is the only person with real knowledge to tell the jury how the e-cat works. However, it seems obvious from the motions and exhibits presented thus far, that the Defendant’s strategy is going to be to discredit all of Rossi’s testimony by bringing up issues of past jail time in Italy, failure to pay taxes, representing that JM Products was a subsidiary of Johnson Matthey, and the means by which Rossi was able to get out of a pending agreement wit Hydrofusion. The Plaintiffs have motions to make most of these negative issues non-admissible. It will be interesting to see how the court rules on these motions.

      • Richard Hill

        The claim by the defendants that the Law of the Conservation of Energy proves that a CoP greater than one is impossible. …..
        Many commercial “heat pumps” have a COP of 3 or more.
        The COP issue has almost been beaten to death in this blog.
        The defendants must not have done any prior reading.

        • GiveADogABone

          Being as the E-cat works on the principle of mass destruction aided by some input electrical power, I wondered how much mass it destroyed at 1MW/day.
          1 Mw per day = 10^6 x 86,400 J/day = 8.64×10^10 J/day
          m=8.64×10^10 / (3X10^8)^2
          m=0.96 millgram/day
          Call it approximately 1milligram/day.

          So, over the course of the 350 day test, the E-cat destroyed about one third of a gram of mass. I think it reasonable to suggest that this is the central fact in dispute in this case.
          IH says the E-cat destroyed no mass;
          Rossi says it destroyed about one third of a gram.
          Which of them is right?

          As another illustration, I worked on a nuclear power station that produced about 3GW of heat at full power. This station would then destroy about three grams of mass per day or 1kg per year. This station started running in the mid seventies, so would have consumed about 40kg, if it had run at full power all the time, so maybe the real number is about 25kg total mass destruction over its working lifetime to date. Could a jury get their mind round that?

    • GiveADogABone

      My reading is that it is only Wong’s opinion about the CoP that is excluded.

      • DrD

        Agreed but how can they not amount to the same. No doubt time will tell.

        • GiveADogABone

          :303 Page 15 a First Opinion – The coefficient of performance …
          The Wong disclosure contains no explanation or description of a methodology for reaching this conclusion. …

          so it fails the test.

      • Omega Z

        They’ll(Darden) argue it’s merely a water heater. Obviously, 1Kw in will not exceed 1KW out.

        Rossi’s side will argue that you apply energy to ignite the fuel. Much like a combustion engine.

    • Gerard McEk

      That’s indeed strange to rule. I wonder where it is based on.

    • Dr. Mike

      The ruling only means that Wong can not testify as an expert witness on COP calculations (i. e. that Penon’s calculation was correct) or to refute Smith’s claim that there should not have been an inverse relationship between input power and COP.

  • Thanks at the Cold Fusion Community to give a download for the document:

  • If cold fusion is as Mr Rossi says.
    This court case is just a fanfare.
    Why Mr Rossi should be worried about a paltry few million$.
    I have no idea, other than he is just doing what he has always done.
    Dug in for the long run!
    If and when? this cold fusion saga is reviewed in the future, this will be tales for the grand kids.

  • Axil Axil

    Andrea Rossi
    May 17, 2017 at 4:34 PM

    My working time now is 50% dedicated to the litigation, 50% to the QuarkX, but luckily the trial will end by the end of July, so, at this point, we are in the home stretch.

    Thank you for your kind words,

    Warm Regards,


    With the certainty of an unending appeal that will be undertaken by either party in the Rossi/IH trial, Rossi has not yet understood that this legal process in protecting his IP rights is an unending legal job that will probably extend beyond his life expectancy. He needs to setup a corporate structure that can support continuing litigation in perpetuity through the long term and can persist and be sustained beyond his lifetime.

    Rossi can only fight one foe at a time in court. While IH anf Rossi are engaged in battle, other parties can infringe on Rossi’s IP rights with little chance of legal entanglements. While Rossi and IH are contesting in court, they both become non factors in the LENR marketplace.

  • hhiram

    Rossi was never going to win this thing without a slam-bang incontrovertible working ecat plant to show the whole world. Going to trial only furthers this point. The jury will dismiss him as a fraudster if he can show them a working plant. And they’ll be right to. Either Rossi pulls a working plant (or maybe quarkx) out of his hat, or he IS a fraudster.

    • I don’t think they will know what to make of Rossi… typical strange bird inventor type… and that it’ll come down to how trustworthy/professional they find Penon and Fabiani to be. Especially Penon.

      • LilyLover

        If Penon was trustworthy enough to survive Woodford’s due diligence, why was he deemed untrustworthy the moment they saw an opportunity for future gains on all Rossi’s technology, which apparently doesn’t work but they want the rights to it?
        Lesson to IH – IP is not like “putting a few quarters in a parking meter without parking a car and then stealing the car of the person who tries to use those “remaining” minutes, cause it was your spot.”

        • On paper and on the face of it Penon comes across as professional. But I expect he’ll receive more scrutiny this time around. As the ERV his word is technically all that Rossi needs to win the core of the case.

          If the 1 year test was legally the General Performance Test and the ERV says it met its performance thresholds then that’s that, unless IH can prove fraud to the jury. To that end they have lots of ammunition but what they don’t have is anything major to discredit Penon (that I’m aware of). Just some hand-waving about data chain of custody.

  • Axil Axil

    It might be supportive of Rossi’s case for his counsel to introduce into evidence the upcoming video produced by MFMP showing the ME356 replication of Rossi’s basic technology as fully functional and gainful. This video would place into doubt the testimony and assertions made by the IH paid expertes that the conservation of energy law cannot be violated. This video could also support an appeal by Rossi that disputes the assertion that LENR is not functional and that the verdict that is based on that assumption is invalid and not operable.

    Furthermore, the MFMP personnel who would have conducted that test of ME356’s LENR technology could be called by Rossi’s counsel to support the notion that LENR is now capable of substantial and indisputable gainful power production.

    • georgehants

      Axil, have MFMP really confirmed Cold Fusion?
      Frank if so, new Topic page please.

      • artefact

        Not yet. They are preparing this weekend for the soon to be made test as far as I know.

    • roseland67

      Not really sure if New evidence can be introduced after discovery Axil.
      If it is, those people would probably be called to testify

      • GiveADogABone

        :289 Plaintiff’s Exhibits
        … served on 5 May 2017 …

    • Jerry Soloman

      IH are praying daily that Rossi does not demonstrate or further validate his LENR technology before the trial.

  • Dr. Mike

    It’s too late for Rossi’s lawyers to introduce any new evidence into the proceedings. Also, whether somebody else can make LENR work won’t be that relevant to either side’s case. IH will not likely be arguing that no one’s LENR is working since they are investing in other LENR technology. However, Rossi clearly has had nearly a year to prove his technology works by running an open experiment that used only his technology protected by patents (so he wouldn’t have to worry about loss of IP). He could have run one unit identical to those ~64 units used in the year long test at a water flow rate high enough that produced only a 30-60C rise in water temperature with no phase change (to steam). I certainly would like to see such a test even now to determine how Rossi’s patented technology compares to other’s results.

    • Dr. Mike

      This was meant to be a reply to Axil Axil below.

    • GiveADogABone

      :289 Plaintiff’s Exhibits
      … served on 5 May 2017 …

      59 pages long containing 695 items, many of these are not in the public domain as yet. Many exhibits are compendia. I would say ‘new evidence’ is a flexible concept.

    • LilyLover

      No doubt, a 30C – 60C test would have satisfied you more, but, then IH would have said, “so what?”. Show me an industrial application that does something and then we can talk. So, they did that. Remember, after IH made an in-house reactor, they no longer needed Rossi. Remember, they convinced diligent Woodford! Right now, they want to have the cacke and eat it too, and claim that they are the IP owneres of all cakes and therefore the World should pay them royalties in perpetuity.

      • Carl White

        Even heating the water to 60C could be useful. It would take less energy to turn pre-warmed water into steam.

        • LilyLover

          Electricity generation => widespread usage
          Warm water needs => diminished pool

          Ir Rossi took any of your (not you) advice he’d be on a slooooooowww path, & Then, you’d blame him for being a slow fraudster.

        • Dr. Mike

          If the 1MW reactor could deliver 1MW to a high water flow and produce a temperature rise of 60C or so, then it would be obvious that at the lower flow used in the actual test, it could easily have turned all of the water into steam. Right now I don’t think Rossi will be able to convince a jury that the 1MW plant was really turning the water into steam. It would have been very difficult to fake a test in which water is heated without forming steam. (Note: The heat exchanger he claimed to have installed could have just as easily removed heat from water, rather than condense steam back into water.)

      • Dr. Mike

        IH was entitled to Rossi’s IP after they made the $10M payment (see the contract). IH not only needed Rossi to provide the original IP, they were counting on Rossi to provide improvements to that IP, which is the reason they had the option of paying only $44.5M after the GPT plus 5% of net until Rossi received $1B.
        Since Rossi was not showing an application on the use of heat in the 1MW year-long test, he would have been better off just heating water with no phase change to prove his technology was really putting out the claimed 1MW. If IH can not built functioning E-Cats, they now have no IP of any value.

        • LilyLover

          To pretend to not have received IP is a brilliantly simplistic scam. You can always fail by omitting a few steps and and claim uselessness of IP. The problem is that they still refuse to let go of that very IP in exchange for the fully returned 11M+

          • Dr. Mike

            Whether or not IH wins their countersuit, I’m sure that one of the conditions of the court’s settlement of this case will be to return all IP material to Rossi, if IH has anything of value. Rossi’s IP should be fully protected by patents or pending patents so IH and anyone they shared any information with are not going to be able to use any of Rossi’s IP without some payment of royalty or some new agreement with Rossi. There is no way IH will be able to profit from this deal using Rossi’s IP. After the trick Rossi pulled on Hydrofusion, I am surprised that IH is not also suing for some share of Rossi’s future profits (but perhaps Florida law does not permit damages based on lost potential profits).

          • Kevmo

            That seems to be the crux of the case. If they’re suing that the IP is worthless then why do they want to hold onto it? How can they claim he broke the contract if he’s okay with giving back their money? I do not think IH has any real chance of winning this.

  • Dr. Mike

    I certainly agree that Rossi should have demonstrated to IH that his technology really works without doubt. My feeling is that Rossi can achieve a COP of somewhere between 1.5 and 5 with the older E-Cat technology. Perhaps the QuarkX technology is so good that Rossi wants to get out of the IH deal so that he can make even more money on the QuarkX technology? It would be great to see a simple test on Rossi’s patented (and patent pending) technology. Hopefully the QuarkX device will be demonstrated with a simple experiment that everyone can agree was done scientifically.

    • Bernie Koppenhofer

      Ha, good luck

      • Dr. Mike

        Bernie- Have to agree with you that it would be good luck if Rossi alone set up the experiment. However, I think that a small group of independent scientists/engineers could design an experiment that would clearly measure the COP of the QuarkX.

        • US_Citizen71

          Bringing say 100 liters of water to boil with only a small Lithium ion battery for power in would be a simple test.

          • Dr. Mike

            Have to agree with you, assuming that there was proof that the 100 liters of water really boiled. I would prefer to see a calorimetry method that does not involve a phase change.

          • US_Citizen71

            Something to stir the vessel and a couple lab thermometers is all that would be needed. Accuracy of the thermometers can be checked in a pot of boiling water on a hot plate.

  • Bernie Koppenhofer

    To win the case Rossi must show an economic benefit from his IP, time is running out.

  • wizkid

    Some things will be discussed in a pretrial conference …

    ORDER (298)
    THIS CAUSE came before the Court on Defendants’ Motion to Strike Plaintiffs’ Exhibit List [ECF No. 295], seeking to strike the exhibit list filed by Plaintiffs as part of the Supplement to Pretrial Stipulation [ECF No. 289]. The Motion was filed long past the March 21, 2017 deadline for filing pre-trial motions. (See Scheduling Order [ECF No. 23]). The Court will accept no additional pre-trial motions; all issues that arise pertaining to exhibits, witnesses, and other trial matters may be addressed at a pretrial conference.
    Accordingly, it is
    ORDERED AND ADJUDGED that the Motion [ECF No. 295] is DENIED.
    DONE AND ORDERED in Miami, Florida this 10th day of May, 2017.

    • Dr. Mike

      There are quite a few other motions that have not yet been ruled on by the court even though the court will not allow any additional pre-trial motions. Look for several important rulings on motions in the coming week. Plaintiffs lost another motion ruling in that Motion #304 was denied in Ruling #308.

  • GiveADogABone

    Document :303 has been denied by :308. In :309, Rossi seeks leave for additional discovery (wrt to :235-10) and provision of a rebuttal expert report for Murray’s yet-to-be-submitted additional report. No doubt the rebuttal expert will have to be deposed.

    So :235-10 and :215-1 could still be in play. If :309 is granted, Rossi could start on dismantling the technical and scientific arguments of Smith and Murray by confronting them with reality and the evidence in his 695 exhibits.

  • Andreas Moraitis

    From document 313:

    “5. Defendants’ Appeal of Magistrate Judge O’Sullivan’s Denial of Defendants’ Motion for Sanctions Based on Plaintiffs’ and Third Party Defendant J.M. Products Inc.’s Spoliation of Evidence [ECF No. 285] is DENIED.”

    That should be once and for all, since further motions are not possible.

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