As of Midnight on the 27th, Wolfeboro had not produced the bulk of their objections.  This morning, they were available on the court’s electronic filing website.  There must be some latency in the system.

So here are the raw filings:

125 Wolfe objection to WP motion to exclude evidence of damages
126 Wolfe objection to WP motion to preclude untimely evidence of betterment damages
127 Wolf objection to WP motion to preclude evidence of unactionable claims
128 Wolf objection to WP motion to preclude untimely disclosed documents
129 Wolfeboro objection to WP motion to strike untimely facts, experts, and reports
130 Wolfeboro objection to WP motion to preclude spec evidence supporting total loss

After skimming through these, let me first take a cheap shot at the expense of our attorneys.  We are no doubt well past the $1 million mark in fees to these high powered lawyers, so I want to call your attention to filing #126 Wolfe objection to WP motion to preclude untimely evidence of betterment damages.

Note here the subject of the motion they are objecting to.  “untimely evidence”.  Now if you read the first page where they begin their arguments with the “factual background”, you might notice that they reference documents (Exhibit #2) produced on April 9, 2014.  They follow that with a reference to (Exhibit#3) produced on Feb 12, 2014. Basically they are arguing the correct timing of their document production and they have the year wrong.

Moving on to substance.

While the volume of these objections may suggest that Wolfeboro is on solid ground in resisting the motions of WP, buried within is a major shift in the disposition of the case.

Wolfeboro has conceded one of the primary objections of WP.  They have removed Mr. Phillip Forzley from their expert witness list.  Basically, Mr. Forzley was the towns expert testifying to the damages suffered by the town.  You may recall this was covered in the blog a few days ago.

So that kind of leaves a big hole in the case.  Without proving damages, it’s hard to press this case.  The solution offered is to have Dave Ford testify as to the damages.  This is a major change, because Mr. Forzley was offered  as an “expert” witness, and Mr. Ford will be testifying as a “fact” witness.  There is a distinct difference between the two.

Moreover, it’s not clear at this point that the court will allow a non-expert to testify as to the damages, for several reasons:

First, the damages are based on the town’s total-loss theory, which as I understand it can only be supported by expert testimony.  It would be difficult, for instance, for WP to explore any deviation from total-loss with Mr. Ford as he’s not qualified to offer any opinion on that.

Second, the original $10+ million damage estimate was put forth by Mr. Forzley in the original H&A expert report.  The WP motion questioned it’s admissibility claiming, more or less, that the estimate was actually produced by Mr. Ford.  Since then, the town changed their claim via an amended interrogatory, supplying a new $8+ estimate that Mr. Forzley said in his deposition was his product.  So where WP had moved to strike Mr. Forzley testifying as an expert to Mr. Ford’s estimate of damages, presumably now Mr. Ford will be testifying as a fact witness as to Mr. Forzley’s revised estimate of damages.  Makes my head hurt.

So score three major wins for WP before the judge even rules:

• They objected to, and Wolfeboro retracted, claims of Gross Negligence.
• They objected to, and Wolfeboro retracted, claims of Breach of Warranty.
• They objected to, and Wolfeboro has retracted, the testimony of their expert Mr. Forzley.

You could add that WP has objected to Wolfeboro’s lack of proof that the site cannot be fixed and Wolfeboro has been busy in the middle of winter digging test holes at the site and using the information to convince NHDEP (so far unsuccessfully)  that our site is hopelessly in violation of the permit so they can use that to support their case.

That’s right, while our Selectmen were writing to us in the Newspaper that the case was solid and WP was desperate, they were exaggerating the damages claim by a million dollars, doing excavation tests at the site in the middle of winter and working NHDES in an effort to produce needed support for their total-loss position.

More to come….