Last night, I spent a few hours reading over the dozen or so new motions that were just filed along with the pre-trial documents such as proposed jury instructions and witness lists. The twists and turns of this lawsuit are every bit as interesting as a John Grisham novel.
I don’t know how these motions will play out over the next week when the parties file their respective objections with counterarguments, but if this were a heavyweight bout, I’d be inclined to score this round to Wright Pierce.
Let’s look at the counts of the amended complaint that Wolfeboro filed:
- Professional Negligence
- Gross Negligence
- Breach of Contract
- Negligent Misrepresentation
- Breach of Warranty
- Violation of RSA 358-A (fraud)
- Fraudulent Misrepresentation
Quite a shopping list, but really it all boils down to the same issue. Wolfeboro built a RIB that doesn’t work to their satisfaction. Wright-Pierce has now filed a slew of motions to eliminate or suppress Wolfeboro’s evidence and expert testimony regarding many of these claims.
My first reaction to the sheer volume was that this is just standard procedure in the run-up to a major trial. Throw everything against the wall and see what sticks. But judging by Wolfeboro’s reaction, there appears to be validity to their claims.
Take for instance their motion to eliminate count 2 – Gross Negligence. Wright-Pierce has simply argued that there is no statute in New Hampshire that defines Gross Negligence. Moreover they cite a Supreme Court decision where someone else tried it and were told as much. Guess what, Wolfeboro just withdrew that count.
Count 5 – Breach of Warranty is another example. Wright-Pierce submits all of the contracts and asks “Where is the warranty?” Moreover, they say that Wolfeboro hasn’t produced any evidence whatsoever to support this claim. Wolfeboro just withdrew that count as well.
Counts 6 and 7 – dealing with fraud and the consumer protection act. This is the one that opens the door to treble damages. WP is now saying that there has been no evidence offered to satisfy the statutory elements of this charge. In any event, it appears that Wolfeboro has agreed to let the Judge decide whether to rule on this himself or give it to the Jury to decide. That doesn’t shout confidence.
But the thing about these motions that impressed me the most was WPs assertion that Wolfeboro had not produced evidence to support what is otherwise only the conjecture of it’s experts. From stuff like where their experts get the amounts claimed in their damage numbers (“From a spreadsheet that Dave Ford gave me”) to how they know the site can’t be fixed, to how they know the RIB is a total loss.
Those are serious questions, and they go to the heart of the remainder of the complaint. So you might think it’s all just a show and that the town really did present that evidence. It doesn’t appear that’s the case.
Apparently, as these deficiencies were brought to light, the town came to the realization that this might be true. In January and February of this year, the town scrambled to put together thousands of pages of documentation to address these shortcomings.
Wright-Pierce has moved, and in my opinion rightfully so, that these documents are well past the deadline for supplementing expert testimony and are therefore inadmissible.
There’s a lot more. Questions about the validity of the damage claims, and the notion of betterment which takes into account the 20 year life expectancy of the RIB site and the fact that Wolfeboro has had the use of the RIB site since 2009 and is permitted through 2017.
I’ll be presenting more detail on some of these topics and keeping an eye on what develops. Last night, there was a non-public session of the BOS. Are they starting to consider settlement? They’ve come this far, will WP even be open to settlement before these motions are ruled on? Stay tuned.