The last big event was the motion to amend the lawsuit to include allegations of fraud. This was a big deal for Wolfeboro because it upped the ante considerably by opening the door for treble damages. With a claim of $10 million in damages, the theoretical potential is now $30 million. Whether that’s realistic, or WP can pay it, or whether it’s enough to cause the suit to languish in an eternity of appeals are other questions, but the bottom line is that it probably was intended to scare WP into settling on Wolfeboro’s terms.
It doesn’t appear to have had that effect. As part of the order allowing the amended complaint, the judge said that additional time for discovery may be necessary and that the parties can ask for it. In their objection to the amendment, WP had said that additional expert testimony would be needed to defend, and the order says they can ask for that too before the end of the discovery period. WP did ask for it – just before the end of the discovery period. The judge allowed the discovery but not the new expert testimony. And that’s the big issue on the table now.
The town maintains that the RIB site is completely failed, and must be replaced with some alternate effluent disposal capability. That justifies asking for everything that we have ever spent on it. WP maintains that the site can be repaired, and even says it can handle the originally permitted 600,000 gallons per day. That’s a pretty big difference of opinion, and opinion is what the expert witnesses bring to the table. WP’s experts, Haley and Aldrich, Inc., in their original testimony, opined that the site could be fixed. Wolfeboro and their experts have said that it can’t be fixed, and have said that the approach suggested by WP cannot be permitted.
So WP had their experts produce a more detailed description of their proposed Remediation Plan and convinced Wolfeboro to bring it to NHDES for review. Big surprise, NHDES, in a letter, said that the slope stabilization part of the plan was OK by them, and recommended that it be done.
They did however, say that impacts to the wetlands were an ongoing problem and that any solution had to address that as well. So WP hired a wetlands expert to take a look, Unfortunately, Wolfeboro won’t allow him to look at the site. Not to be deterred, WP had him assess the portion of the impacted wetlands in Tuftonboro, and examine photographs and topographic maps of the Wolfeboro side. He produced a report in which he offers the opinion that the channelization issues in the wetlands can be mitigated and potentially reversed by felling trees to “rough up” the terrain. He says this is a common practice called “chop and drop” used to control erosion and has been permitted in other wetlands in NH and elsewhere.
According to WP’s latest motion for leave to file reply to objection of their motion to extend the time to supplement expert testimony, Wolfeboro doesn’t want any part of it. They also say that Wolfeboro won’t consider mediation.
I have no idea if what WP is proposing would actually work, but it looks as if they are determined to pursue it. NHDES seems to at least take their approach seriously, although they offer no opinion on any potential capacity impact. More importantly, they say that while initial permitting is based on expected performance, ongoing permitting will be based on actual performance.
So Wolfeboro is not interested in repairing the site, and is doing everything they can to keep that prospect out of any trial by resisting the inclusion of additional expert testimony. Presumably, the town would take the proceeds of any award and use it to pursue some alternate effluent disposal strategy. But the reality is that even at current levels, the RIB site, along with seasonal spray field operation, is just about adequate for our needs. It’s not inconceivable that the town would get a new engineer after the trial and actually implement some of these “fixes” to the RIB site to allow 300,000 gpd or more and just live with it.
So it all hinges on whether the judge grants this motion to effectively allow WP to make their plan to fix the site part of their defense. My guess is that it will not be allowed, and that will become the basis of an appeal. Once again, the lawyers can’t lose.