Wolfeboro also has filed a number of pretrial motions to exclude various theories of defense and specific testimony from WPs expert witnesses. As you might expect, they take a completely different view of the situation.
Wolfeboro has filed five pretrial motions:
The first is a motion in limine to preclude late expert opinions. This motion relates to Wolfeboro’s ongoing efforts to exclude the Haley and Aldrich Slope Stabilization Plan. WPs experts have maintained from the beginning that the site can be repaired, but did not provide any specific plan in their initial expert testimony. Subsequently, they produced a plan that was reviewed and recommended by NHDES. Unfortunately for them, the plan was produced in August 2013, after the deadline for supplementing expert testimony, and is now inadmissible.
WP has tried on numerous occasions to introduce this report so as to put some meat on the bones of their expert’s opinions. This motion in limine asks the court to formally instruct WP not to attempt to reference the remedial plan. Absent a specific plan, Wolfeboro is in a better position to advance their total-loss theory.
The second is a motion to exclude R Moore from testimony that the site can be repaired. Here Wolfeboro argues that WP’s expert, Mr. Moore, has not met the standard required for expert testimony regarding scientific facts. Mr. Moore, in his expert report, stated that he believes the site could be restored to 600,000 gpd but does not offer any specific plan to do so. In his deposition he describes a slope stabilization technique that is very similar to the Haley and Aldrich slope stabilization plan, but admits that it is a theory or concept and not a specific plan.
The third motion to strike WP affirmative defense of mitigation asks the court to prohibit WP from arguing that Wolfeboro’s failure to follow the recommendations of WP during the two years following the initial failures contributed to any damages suffered by the town. WP has advanced the theory, through its experts Haley and Aldrich, that the town should have followed their recommendations to investigate and possibly repair problems at the site. Wolfeboro is arguing that WPs expert is a hydrogeologist and not a geotechnical engineer and unqualified to offer that opinion. Moreover, they say that the HA expert hasn’t offered the required scientific proof that early mitigation would have made any difference.
A fourth motion to strike wp affirmative defense pertaining to comparative fault. Asks the court to strike four comparative fault defenses that they described in their answer to the complaint. There are several issues here but the overwhelming issue at hand is WPs claim that the Town “overloaded” the RIB during startup and contributed to the problems, thus, Wolfeboro bears some of the fault for any damages. Under this theory, any damages proved would be apportioned to the parties according to the comparative fault that they are responsible for.
Wolfeboro is arguing that there was no overloading during startup. Moreover, they assert that WP has failed to provide any evidence that excessive start-up flows were the cause of the soil piping and slope failures. They say that WPs “experts” are not qualified to offer that opinion and ask that the court exclude the comparative fault defense.
This is a complicated issue. There is a question of interpretation of the actual permitted flow rates. There is a question of the accuracy of the measured flow rates during startup. There is a controversy about what WP actually recommended and/or agreed to, and there is a fundamental disagreement as to whether the site was ever capable of handling any significant flow without suffering breakout and damage.
The last motion to exclude HA experts is further impeaches the qualifications of the two Haley and Aldrich experts and asks that the court exclude their testimony concerning the standard of care for engineers and their opinion concerning the alleged overloading during RIB start-up. Wolfeboro argues that these guys are not engineers and therefore are not qualified to testify as to the proper standard of care required of engineers.
They go on to say that in their depositions, they admit that they are not knowledgeable in the proper start-up procedures for a RIB and are only speculating when they assert that a gradual start-up would have been appropriate.
Obviously, both sides have done their best to eviscerate their opponents case, and we haven’t even seen the objections and replies to objections. None of it changes my impression that the whole thing boils down to the basic issue of whether the site can be fixed. Wolfeboro decided early on that they don’t want to try to fix it. They want the court to declare it a total loss and make WP pay them every dollar that has ever been spent on it.
If you’ve been following along, you might be starting to realize that the truth has diverged from reality. I’m not saying that either side is lying, I’m saying that I’m learning that because of the way the legal system works, deadlines are established and the truth is defined by the subset of facts admitted into evidence at a particular point in time. Meanwhile both sides have developed meaningful information that may be excluded on procedural grounds and/or as a result of these motions.
WP has developed potentially inadmissible meaningful evidence that there are acceptable remediation measures that can be employed. Wolfeboro has developed potentially inadmissible evidence of their damages claims that are needed to support their case.
Tomorrow the other shoe drops when both sides must file their objections to these motions.