While the court ruled on the easy motions late Friday, there are some big issues to decide now.  Wolfeboro continues to press their total-loss theory and all but cemented it in with Friday’s ruling excluding for the third time the slope stabilization remedial plan and related wetland erosion control plans.  My understanding is the only way that stuff gets in now is if someone from Wolfeboro or one of their experts slips up and mentions it during testimony.

The remaining issues that will determine how this goes are:

Whether WPs affirmative defense of mitigation is allowed.  That’s where WP says that Wolfeboro frustrated their attempts to bring experts on-board early to ascertain the situation and implement remediation measures like slope stabilization.  Wolfeboro’s argument seems to be that WP didn’t really press for early mitigation, and that because the site is fundamentally flawed it wouldn’t have worked anyway.  I think WP wants a Jury to hear their evidence and decide for themselves.

Another issue is whether the court will allow WP to argue a comparative fault defense.  That’s where WP tries to make the case that Wolfeboro contributed to the problems by overloading the RIBs during startup and apportion part of any damages to each side.  Wolfeboro argues in their objection that they didn’t overload the RIBs and that WP hasn’t provided adequate proof.   We’ll see about that one.

During the start-up, the correspondence shows that Wolfeboro loaded the RIBs to excess throughout the first three weeks, against the recommendation of WP.  The way it was justified was by exploiting a loophole in the interpretation of the permit by pumping 100 gallons a day for a week so those days wouldn’t be counted as no flow days.  I guess you can game the system, but you can’t fool mother nature.  She knew that the flows exceeded the capacity of the system and the result was slope failure.  After the “corrective week”, it looks like Wolfeboro went back at it even harder.  I’ll be curious to see if the judge doesn’t think this is something the jury should consider.

Another big issue still hanging is the damages portion.  While Wolfeboro removed Mr. Forzley from the witness list, the question of whether his testimony in the form of the $10+ million damages estimate in F&O’s expert report will be allowed to be entered.  WP has argued that the value of the report is outweighed by the prejudicial effect the estimate would have on a jury.  More so now that WP cannot even cross examine Mr. Forzley concerning that estimate.

I suspect the judge will order that all references to the damages be removed and the rest of the report admitted.  Mr. Forzley is listed as one of the authors and stated in his deposition that he edited the entire document.  My impression is that his function was to insert the phrase “due to WP’s negligent conduct” at every opportunity.  He certainly used it to excess in his deposition.

Regarding that deposition.  While Mr. Forzley was enthusiastic in pressing that “negligent conduct” theme at his deposition, Mr. Corkum was methodical in pushing back.  “How do you know that?”.  “Did you read the report?”  “Have you looked at Mr. Schwalbaum’s explanation of that?”.  Remarkably, Mr. Forzley’s opinions didn’t seem to be based on those items that might be brought into evidence.  It almost seems as if his whole opinion, not just his damage estimate, had been spoon-fed to him.

I wonder if he was removed from the witness list because his opinions couldn’t be supported by the facts, or if he subsequently took Mr. Corkum’s suggestion and actually read the other side of the story and lost his enthusiasm.