As anticipated, WP has filed an Objection to Wolfeboro’s request to supplement the amended complaint. WP starts out by saying that Wolfeboro is briefing this motion “Ad Infinitum”. They say that the amendment process has run it’s course with the sequence of motion to amend, objection, reply to objection and surreply. That it was Wolfeboro’s choice to do early discovery and production of expert witness testimony, and now changing the nature of the complaint, and continuing to supplement the amendment, drags the suit out and prejudices WP because they have to backtrack to defend the new allegations.
Also, in direct response to Wolfeboro’s new allegations contained in the supplement, WP has supplied an affidavit and maps to put the issues in context.
Wolfeboro had alleged that an email dated Feb 6, 2007 between Mr, Schwalbaum, the hydro geological modeler, and Mr. Smith of WP, was proof that WP had directed Mr. Schwalbaum to falsify the simulations. The affidavit by Mr. Schwalbaum says that on Feb 6 the modeling was at a preliminary stage, and the exchange was nothing more than ordinary back and forth that is customary in developing and calibrating a simulation model.
Wolfeboro had also alleged that a handwritten note that Mr. Schwalbaum made to himself in 2009, after the RIB had failed, proves that WP falsified the model. Apparently Mr, Smith had directed Mr. Schwalbaum, back in 2007, to change some of the soil types in the model, which had the effect of increasing the capacity of the modeled system. After the failure, realizing the seriousness of the situation, Mr. Schwalbaum made the note to document that he did not have anything more than Mr. Smith’s directive to backup the change. In the affidavit, Mr. Schwalbaum states that he has now seen the actual field reports of tests and borings that support Mr. Smith’s directive. He states unequivocally that the documentation supports the changes and the documents are provided as exhibits to the objection.
So to sum up, WP is saying that the supplement to the amendment is not based on evidence and is beyond the scope of allowable filings.
Will Wolfeboro try to get the last word? Will the court allow the supplement? Will the court grant the motion to amend? I think we should find out soon.