WP files their objections – and reveals a new element

Wolfeboro has two more hours to file it’s objections to WP’s pretrial motions.  WP has filed 8 so far:

116 WP objection to plaintiff pretrial statement
117 WP objective to plaintiff list of trial exhibits
118 wp objection to plaintiff voir dire questions
119 wp objection to plaintiff proposed jury instruction
120 wp objection to plaintiff motion to strike affirmative defense of mitigation
with 120-1 memorandum of law
121 objection to wolf motion to preclude R Moore testimony
with 121-1 memorandum of law
122 WP objection to motion to exclude H&A testimony
with 122-1 memorandum of law
123 wp objection to wolf motion to exclude certain expert opinions
123-1 memorandum of law

The first four are just objections to what WP considers to be prejudicial language in the various proposed statements and instructions.  In most cases, WP says Wolfeboro has deviated from or excluded  certain language included in the standard boilerplate for these kinds of documents.

Three are objections to the various motions that were covered in previous posts.  Basically Wolfeboro said various experts and opinions are not credible, WP responds that they are.

A few new pieces of information (to me) are revealed in these objections.  Regarding the objection to strike the affirmative defense, WP argues more strongly than I’ve seen and makes a more emphatic case concerning their efforts to undertake mitigation efforts early on and Wolfeboro’s refusal to do so.  I suspect that Wolfeboro will vehemently disagree with those assertions, but if allowed, it will be a powerful argument that will probably rest on the testimony of key players like Dave Ford and Peter Atherton.

The most revealing item is a letter attached as an exhibit to WPs  objection to Wolfeboro’s motion to exclude certain expert opinions.  It is a letter from WPs experts Haley and Aldrich to their attorneys  dated February 27, 2014.  That’s right 2014.

The letter references a February 14, 2014 letter from Wolfeboro’s experts Foss and O’Neill (herinafter the “Valentine Letter”) that was reportedly forwarded to NHDES.  I don’t have a copy of the Valentine letter, but the H&A letter states that it contains an opinion by F&O that certain increased flows into wetland areas around the RIB site are illegal discharges.  That opinion appears to be the basis for Wolfeboro’s total-loss theory.

This is very interesting to me because it directly addresses one of the biggest questions that I have had concerning the viability of the H&A remediation plan.  I’ve been hearing from the town and from F&O testimony in depositions that even if the slope failures can be repaired, the flows into the wetlands are a violation of NHDES regulations.

In reading the early reports from WP from 2007, I had recalled that the report specifically said that something like 50% of the water would be discharged to the wetlands and the rest would come out into the brook, and ALL of the water would exit via 19 Mile Brook.  So I had been wondering how what everyone was calling illegal discharge differed from that.

H&A says there is nothing different.  That the discharges called illegal by F&O are in fact those same discharges that were predicted in the early phase 3 report and subsequently permitted at 600,000 gpd. So now, if that’s true, my confidence level in the H&A remediation plan has just gone up a lot.

I suspect that Wolfeboro’s confidence level may be decreasing as well, because the letter also talks about F&O doing some test-pit excavations at the site in February of this year.  We all know how cold it was this past February.  Maybe WPs arguments that F&O didn’t do any kind of actual investigation to support their total-loss theory hit a nerve.

This gets more interesting by the day.

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