Rossi v. Industrial Heat Case: Rossi’s Team Seeks Sanctions Against IH and Counsel for ‘Frivolous Claims’ (Update: Motion Denied)

There continue to be quite a number of documents filed in the Rossi v. Industrial Heat lawsuit, much of which is legal jousting with little in the way of evidence, but a new document published in the court docket (kindly made available here by Eric Walker) does bring out some items of evidence that have been uncovered in the discovery proceedings so far.

In this document ( Rossi’s and the third party counter-defendants’ lawyers are seeking court sanctions against Industrial Heat’s attorneys for what they allege are “a number of frivolous claims which lack any basis in law or fact and that are directly controverted by the evidence immediately available to Defendants and in their possession.”

From the document:

Specifically, Defendants:
— deny the fact that the test being undertaken in Doral, Florida by Engineer Fabio Penon was the “Guaranteed Performance Test” contemplated in paragraph 5 of the License Agreement including amendments thereto, despite their subject matter expert’s and licensed electrical contractor’s testimony to the contrary.

— claim that they were unable to replicate any of Plaintiffs’ claimed E-Cat testing results “or otherwise generate measurable excess energy,” squarely contradicts Defendants’ sworn claims to the contrary in their WIPO Patent Application number WO 2015/127263 A2 filed on August 27, 2015;

— assert that Plaintiffs wrongfully provided or disclosed, without prior consent and without a non-disclosure agreement, E-Cat fuel samples or information to scientists for study and publication, while in possession of written evidence that directly proves otherwise;

— maintain that Plaintiffs “breached the license agreement [by]…failing to report and pay taxes on payments/revenue made under the License Agreement,” while being fully advised that there is neither a legal or factual basis for such; and Rather than presenting viable defenses to their failure to abide by the terms of their agreement, Defendants attempt to mislead the Court and deflect this Court’s attention from
Defendants’ wrongdoing in an effort to intentionally increase Plaintiffs’ costs of litigation and to confuse the issues before the Court. Sanctions are appropriate.

As evidence for the above, Rossi’s team cites part of a patent application that was submitted by Industrial heat to the World Patent Organziation that claims E-Cat testing results with a COP of over 3 for a 16-day period. (see p. 6)

They also include excerpts of transcripts from some of the hearings held so far are included in the document in which Rossi’s lawyers interview IH engineer Thomas Barker Dameron III. Here is one of the exchanges:

Q: Industrial Heat has represented that they replicated a test on their own, which resulted in a COP of 1.3. They have also made an affirmative representation in this case that they have never been able on their own to replicate any measurable excess heat, any, whether it’s reliable or not reliable. These two statements to me seem inconsistent, and I’m asking you, sir, if you have knowledge to which one, if either, are correct?

A. I can’t say that we never had a result that was — let’s see if I can say this right — we probably had results greater than one, 1.3 might be an answer. I think that reliably, repeatedly, repeating those results has not happened. So at some point in time there could have been a result of 1.3 that we thought was good.

Later in the document the topic of the Guaranteed Performance Test is brought up. Mr. Dameron is asked if he knew that the plant that was sent to Doral, Florida was going to be used for the Guaranteed Performance Test, and he answered, “Yes.” More from the transcript:

Q: Did you have an understanding as to whether or not positive results from the test in Dora, Florida would result in a large payment to be made to the Leonardo Corporation and Dr. Rossi?

A. Yeah, I found out about that.

Q: When did you find out about that?

A. A little late in the game. I didn’t know what the total contract amount was.

Q. What did you find out?

A. I found out that it was a hundred million dollars contract.

The document also states that Barry West, who worked in the plant with Andrea Rossi and Fulvio Fabiani acknowledged that he knew the results of the test would determine whether Rossi would get paid.

There is much we don’t know about what has been said or not said in the hearings held so far, since the transcripts are not yet available, so this is just a glimpse of the proceedings. But there does seem to be at least some indication here that IH did get some positive results from E-Cat testing on their own, and that some of their personnel were thinking of the Doral test as the Guaranteed performance test.

Update (Jan 11, 2012) A new document has been published in the docket (see document 112 at this link) in which Judge Cecelia Altonaga denies without prejudice the motion to sanction the IH team’s lawyers.