wolfeblog

No word yet on the jury deliberations.  Shortly after starting yesterday, they asked about the pump flow chart record from the week preceding the slope failure in April 2009.  The judge said that it was evidence.

In the meantime, the court posted the  instructions that were read to the jury yesterday. I heard the judge read them aloud in the courtroom, but you may be interested in how the jury was charged.

I’ve put a call in to the case manager to find out the status and whether the jury will deliberate over the weekend.

Both sides have filed their Findings of Fact and Rulings of Law with the the court.  First Wolfeboro and then  Wright Pierce.  As I get this exercise, the judge will consider the jury’s finding on the Consumer Protection claim as advisory and make the final judgement.  When the court makes such a judgement, it must produce a written declaration of the facts considered and the law applied.  Should there be an appeal, the facts found by the trial judge would carry significant weight over any subsequent representation.

So the parties are asked to demonstrate their expectations, and presumably the court will undertake some sort of process to reconcile the two.  Good luck with that. They both start out saying Wolfeboro received an Administrative Order on April 19, 2005.  After that, the sky is green or orange depending on which one you read.

Interestingly, Wolfeboro’s was produced by Seth Pasakarnis one of the two attorneys that have actively pursued the case at trial.  Wright Pierce’s was produced by Patricia Gary, an “of counsel” attorney in the Boston Office who specializes in appellate work.  Doesn’t hurt to plan ahead.

Today saw closing arguments, followed by the judge instructing the jury on procedures and matters of law.  The jury went out just after noon.  As of about 3:30 there was no verdict.  I asked to be notified, but may not know until it is posted on the courts Electronic Filing System, which can take a day or more.

Dave Ford told me this morning that the judge ruled in Wolfeboro’s favor on the motion to reject WPs comparative fault and betterment defenses.  Nevertheless, Mr. Dennehey in his closing arguments treated the comparative fault issue qualitatively rather than quantitatively.  That is to say he argued that it’s all Wolfeboro’s fault.

In her closing statements, Ms. Cull made a big deal out of the fact that only Mr. Brown testified for WP.  After 3 weeks of trial,  2½ by Wolfeboro, I have to wonder if the Jury doesn’t actually appreciate not being subjected to a parade of do-overs.  Maybe they’re thinking “nuff said”.

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Now that both sides have rested their case,  I’ll tell you what I think.  First understand that this isn’t a prediction of what the jury will decide.  They have less information and must decide based on the law and how the parties have positioned themselves.

I think that Wright Pierce did a good job of helping the town resolve the administrative order.  I think they did a good job of locating a site for a RIB system, and I think they did a good job of designing and overseeing construction of the disposal facility and related infrastructure.  The Monday Morning Experts aside, I’m reasonably convinced that the site was capable of handling the town’s disposal needs, although some selective slope armoring and wetland erosion mitigation may have eventually been needed.  WP said as early as 2007 that might happen, and the project was sufficiently under budget to pay for it.

I think the evidence is undisputed that the town severely overloaded the system during April of 2009, the second month of operation.  I think that caused the slope failure, but am not convinced that the slope would not have exhibited some problems over time and might have required some armoring as a result, as explained above.

I think the unmitigated soil piping since that initial failure has led to continuing and escalating site deterioration and increased operational costs of the site, as well as the cost to operate substantial spray field supplement.

I believe that the town withheld the extent of the overloading from WP until forced to provide the NHDES required flow charts as part of discovery in this lawsuit, and that if WP had that information initially, they would have been better equipped to understand what happened and recommend action.

I think that by retaining legal council and refusing to work with WP in good faith to resolve the issues, the town has transformed what was a straightforward engineering problem into a huge legal gamble.

Finally, I believe that the site can be fixed to handle our present and future needs, possibly with seasonal operation of our existing spray fields, at much less cost than abandoning the site to pursue another solution.

A lawsuits is a means to resolve a dispute, not a problem.  No matter which way the court goes, the problem will remain and will still require a solution.  I believe this could have been resolved years ago.

Wolfeboro has posted their motion for judgement as a matter of law.  As explained previously, Wolfeboro is asking the court to rule that WP has not met the standard for comparative fault defense and mitigation defense.

Nobody disputed that the town pumped 800,000+ gallons per day in April, nobody disputes that the slope failure occurred after two weeks of doing that, and nobody disputes that the model predicts the breakout that caused the slope failure at 800,000 gpd.  What the town is saying is that WP’s experts did not explicitly say that the 800,000 loading caused the damage in their report a year ago, and procedurally they cannot supplement their testimony.

We should find out tomorrow if the court will entertain this.

Today WP put on their last expert witness, John Kastrinos, a hydrogeologist from Haley and Aldrich.  Mr. Kastrinos was accepted as an expert without objection.

The defense took him through his history of projects that included a couple of RIB systems, most notably a 4.5 million gallon per day system at Devens, MA.  He basically testified that in his opinion WP met the standard of care for a hydrogeologist in siting, modeling, and determining capacity of the RIB.

Of particular interest was his explanation of his rationale in approving the siting effort.  He pointed out that Wolfeboro is a challenging place for land based disposal because the bedrock is close to the surface in most areas.  He said that the best opportunities in that envirnment are usually in what e called “ice” formations typically classified as Eskers and Kames.  He said that this particular site had the advantage that it was along an existing power line right of way that made it possible to construct a pipeline from the existing storage pond without crossing roads or acquiring new rights of way.

On cross, Wolfeboro’s Ms. Cull started in on the 600,000 gpd thing.  Mr. Kastrinos offered his opinion that the site was qualified for a maximum of 600,000 gallons per day, and that more than that would result in breakout above the existing defined discharge area – as happened in April of 2009.

After Mr. Kastrinos, the defense rested, an dthe jury was dismissed until 10:00 am tomorrow when the parties will present closing arguments of a maximum one hour, to be followed by the judge’s instructions to the jury, then off to deliberation.

Afterward, the parties had a bench session that appeared to be a lively discussion as to whether the defense theory of comparative fault will be allowed.  That’s where the jury would decide if the Town’s loading of up to 950,000 gallons per day in April of 2009 should be considered by the jury as a contributing factor in the problem.

Prior to the trial the court put Wright Pierce on notice that the comparative fault claim would need to be substantiated by expert testimony.  After three weeks of hearing about the 800,000+ gallon loading in April of 2009 immediately preceding the undisputed failure, it seems like it would take an extremely literal view of any such requirement to prevent the court from putting the question to the jury.

Another defense of failure to mitigate bears the same standard. All those questions should be answered tomorrow when the jusge charges the jury.

Interest in this blog has exploded since the trial began, and though I have a definite opinions about how it’s going, readers should be cautious that I don’t really have anywhere near the insight that the “teams” have.

First, there’s the law.  If I’ve learned anything reading motions and responses it’s that I don’t really have a clue about the law.  Each of these counts has formal elements that must be proven or dis-proven to satisfy the law.  I’m sure the attorney’s and the judge have their own score cards, and I’m sure they differ significantly.

Next is the jury.  There’s a guy that has been coming in just about every day for a few hours and he sits quietly in the back of the courtroom where the view of the jury is best.   He looks frequently at the jurors and makes a lot of notes.  I don’t know which side he works for, but I’m pretty sure he is an expert in assessing the disposition of the jury and he is advising one of the sides in this.  I haven’t noticed anyone else specifically, but there have been other loner type walk ins with less frequency and so I suspect both sides have some form of professional jury advice.

Then there’s the different ways this can be decided.  Wolfeboro wants a total-loss $8.3 million verdict with treble damages – $25 million.  WP wants the Jury to find that the site was damaged by the town’s overloading and that they met all of the required standards of care – $0 million.  In between, there are remediation suggestions, and there have been amounts stated, and there are apportioned damages that are possible if the jury finds both sides were negligent.

You would have to be crazy to stick your neck out and speculate.  But based on everything I’ve heard over the past three weeks, I can only say what I would like to see happen.  After closing arguments, I’ll take a shot at it.

After Wolfeboro’s used up all of the allotted trial time of 2½ weeks, you might think that the defense would feel the need for some parity.  Not so.  So far they have called Mr. Brown and two of their three experts over 2½ days.  The session recessed for the day just after lunch, and the expectation is that there will be one more expert testifying tomorrow before the defense rests.  Hopefully we will see closing arguments in the afternoon and the jury can be charged.

Today began with Ms. Cull’s cross examination of Mr. Moore.  I have to say that the guy was  solid.  He was questioned about EPA guidelines for RIB system design, a huge manual from 1981.  His continued insistence that they are guidelines as opposed to a prescriptive methodology for RIB development eventually earned a “move on” from the court.

Next up was the soil conductivity values used in the groundwater model.  His response was that the peer review by Weston and Sampson suggested they were too low, and the town’s expert witnesses say they were too high, and the SW Cole report pretty much was the same.  So he feels that means the values were pretty reasonable.

He was challenged that the groundwater model wasn’t verified after calibration.  He said that because Wolfeboro’s site is constrained by the soils deep down as opposed to those at the surface, it is both difficult and less important to do that.  Additionally, he pointed out that the usual way to do it is to monitor levels over a long period of time, and because Wolfeboro was under an Administrative Order, it just couldn’t be done.

Ms. Cull pointed out that SW Cole had mapped breakout in a non-discharge area using the original data and that the phase three report had not shown that breakout.  He said that the topographic scale was five foot divisions so it is not possible to say that those areas are breakout or not.  Later, WP’s redirect established that those areas did not actually experience breakout.

Next up was Mr. DiGenova from Haley and Aldrich.  He is a geotechnical engineer with thirty years experience.  He is also the guy who developed the slope remediation plan that NHDES said should be implemented, and which the town has gone to the mat to keep the jury from finding out about.

Mr. Denehey started out by asking Mr. DiGenova to describe a slope stabilization project he was involved in.  Wolfeboro objected, which led to a series of conferences at the bench.  Heaven forbid a geotechnical engineer tell the jury how easy it is to fix a failed slope.

Mr. DiGenova testified that WP’s monitoring approach to potential breakout was a reasonable approach.  He was challenged because in his deposition he said that a geotechnical analysis should have been done.  Not sure exactly what that actually ended up meaning to the jury.  Seemed to me that the point was that a geotech analysis was warranted but it would have supported a monitoring approach.

On redirect, WP tried for the umpteenth time to talk about the remediation plan, without success.

As geotech vs geotech goes, both Mr. Cullen and Mr, DiGenova were equally professional and forthcoming.  Nobody challenged Mr. DiGenova to address the “red flag” statements that Mr. Cullen made.  Maybe because Mr. Moore had already talked about them.

Tomorrow we will probably hear WPs reaction to the SW Cole “Darcy’s Law” simplified analysis that constrains the site to 340,000gpd.  As they’ve sat in the gallery over the past week, both Mr. Moore and Mr. Kastrinos were poring over plans and doing calculations.  I expect they will get a different result from a Darcy’s Law analysis.

A little late posting.  We were out celebrating our favorite faux Mexican holiday.

Wolfeboro spent the morning cross examining Bill Brown, President and CEO of Wright Pierce.  Ms. Cull started out attempting to challenge that Wright Pierce is using Mr. Brown as the spokesperson for Wright Pierce.  Seems like they want to  get another shot at Peter Atherton and others.  WP objected at the bench and the matter was dropped.

Mr. Brown was probably the last WP witness they are likely to see on the stand.  In their haste to dig up some fraud dirt they called all the WP people themselves.  WP’s lawyers had the chance to get what testimony they needed on cross examination.  Now Wolfeboro has only the WP experts left, and they cannot do anything to help the fraud allegations.

Mr. Brown held up well to questioning.  Ms. Cull kept hammering on the March overloading issue, and Mr. Brown kept providing the same rationale for WP’s actions.  Finally, the judge ordered her to move on.

Eventually the question was asked if WP had ever offered a plan for remediation.  Mr. Brown had had enough.  He responded that the question was disingenuous and launched into an account of the WP-Wolfeboro standoff that the court stenographer couldn’t keep up with.  Everybody except the jury knows about the Haley and Aldrich remediation plan that Wolfeboro has managed to suppress from the case.  It’s one thing to keep WP from bringing it up, and another to accuse them of not providing one.

When he finished his chronology of events, the judge asked him how much WP estimated it would cost to fix the site.  He said $1.2 million on the outside.  I really don’t think that’s a good sign for Wolfeboro.

After Mr. Brown, WP brought up Richard Moore, one of their expert witnesses.  Mr. Moore has 45 years experience as a wastewater engineer.  He is a Vietnam veteran, was president of a large wastewater engineering firm, has built “dozens” of wastewater facilities, designed RIB systems, and published texts on groundwater modeling.

As expected, and without getting into the details, he testified that WP did everything right.  He said the thing can be remediated.  He was very straightforward and credible.  When questioned about the 600,000 gallon per day issue, he said the whole question is academic because the town simply doesn’t produce anything close to 600,000 gallons per day.  He stated that our annual average is more like 400,000 gallons per day.  Why would WP caution the town not to exceed 600,000 gpd when they cannot physically produce that much?  It does seem to make sense.

Tomorrow we will see what Ms. Cull can do to discredit him on cross examination.

At this point, it looks to me as if the town is struggling to make a basic standard of care case, and struggling to show that not all of the damage was done by the April overloading.  Maybe I’m just too close to the details and can’t see the alternate universe the town seems to be living in.

During the Friday morning recess, our attorney Ms. Cull confronted me and said that “they” (meaning the Wright Pierce team I presume) have been reading this blog, and that their attorney had represented to the judge that I thought Wolfeboro’s expert witness Robert Bowden did a bad job.  She was noticeably furious.

I don’t know what I’m supposed to do with that.  My remarks about his testimony are contained in this post and this post.  I think did a pretty good job of holding back.  I’ll tell you what I really think after the trial is over.

Here’s the thing.  I didn’t hire Wright Pierce.  I had no knowledge of the alleged problems until this lawsuit was announced.  I had nothing to do with filing the lawsuit.  I have been sitting quietly in the back of the courtroom for three weeks.  I have not spoken with anyone from the Wright Pierce camp – ever.  I have not spoken to anyone on the Jury.  Wolfeboro’s attorney told me the second day that they had been instructed not to talk to me.  I’m a fly on the wall.

I haven’t written any letters to the newspaper about this trial.  What I have done is to record my observations and impressions in this blog.  I haven’t advertised the blog.  I haven’t sent anything to anyone.  People who are interested in what I have to report and say about the trial can read the blog if they so choose.

If WPs lawyers decide to represent the contents of this blog to the court, I can’t do anything about that.  I don’t know if they characterized the blog accurately or not.

As I understand it this was a representation made in chambers. There’s no way a lawyer’s representation of a blog should have any effect on the decisions of a US District Court Judge, particularly one who has been around as long as Judge DiClerico.

If there are setbacks in Wolfeboro’s case, the problem lies elsewhere.

Wonk alert.  After three weeks of mind numbing legal observation, I thought I’d throw in something from the trial with a different twist.

This is a story about how a roomful of lawyers and engineers can be clueless about a key piece of the technology, and how one of the lesser witnesses can say set them straight and it goes right over their heads (or maybe they ducked).

One of the big controversies being argued in the case is exactly how much effluent was pumped to the RIBs, particularly in April of 2009.  There are no less than three devices with the potential to answer the question.  Problem is that they all give different answers.

So begins the battle of the minds to show which is the more accurate.  Today, the theory was advanced that a pump flow chart recorder, which is required by NHDES and closest physically to the flow sensor, is the gold standard.  The other two, it was explained, are “downstream”.

Two weeks ago Russ Howe, our plant operator, was on the stand and explained that the flow sensor is what is called a 4-20 milliamp sensor.  It’s output is a current loop that varies from 4 to 20 milliamps in proportion to the sensed flow within it’s calibration range, and he said all three devices were connected to the same current loop.  Russ has a background in electronics.

This is an industry standard way to connect sensors to instrumentation because:

• Any number of instruments can be connected to the sensor
• The instrument(s) can be any distance from the sensor
• Every instrument connected in the current loop receives the exact same data

That last point is basic physics.  In any given circuit, the current is constant everywhere.  It cannot be otherwise.  It is exactly the same as it passes through every instrument in the loop.

So if there is any variation, it is in calibrating each instrument to the sensor range, or as was the case in the PLC error, an internal error in the time constant used in the program that accumulated total flow.

The truth is that there has been no credible evidence to demonstrate that any of the recording devices is any more accurate than another, except for the program error described in the PLC controller.  That error, by the way, was algorithmic and is constant at something close to 10% as I recall.

Today continued the direct testimony of William Brown, president and CEO of Wright Pierce.  He took the jury through the whole 8 year history of the project – except for he part where they presented a remediation plan to NHDES last year.  Can’t talk about that.

Direct examination of your own witness is pretty much just show and tell.   Probably due to his position and vast experience, the court allowed him to offer some quasi-expert opinions to the objection of Wolfeboro.

At one point he went through the recently displayed blow-up photos of the site that were shown by Wolfeboro’s experts.  Wolfeboro objected – something about they weren’t actual exhibits.  After one of many sidebars, the court allowed that the photos that Mr. Brown could identify and locate on the map were admissible as evidence.  Using the photos, he painted a different picture of the site damage.  In one particular photo, he pointed out some fallen trees that the Wolfeboro expert had told the jury were fallen as a result of the damage.  Mr. Brown said they were left by the loggers who logged the site just prior to the town buying it. I wonder if there is any proof one way or the other.

In talking about fixing the site, Mr. Brown opined that repairing and “armoring” the slopes was “easy”.  He also went through the water quality reports from 2010 and 2011 and explained how the recharge water quality was much better than originally predicted,  and compliant with the permit.  He said that was why the permit was renewed in 2012.

At the end, he was asked directly if he thought the site could be fixed.  His reply of “absolutely” opens up two questions:

First, he didn’t speak at all to the second remediation requirement documented by Mr. Heirtzler of NHDES.  That requirement, reintroducing the breakout water into the ground,  is left hanging and begging to be asked on cross-examination.  It’s pretty clear that WP has some ideas about that and perhaps this is how they intend to introduce them.  In order to challenge him, Wolfeboro has to ask how he intends to satisfy that requirement. They’ve mentioned doing something on the Wolfe1-B site, and another possibility is they intend to suggest using the small WICK that they already built on site.  Mr. Brown spent an unusual amount of time explaining WICK technology today.

The second question that his “absolutely” answer raises is how Wolfeboro is going to prove he is lying. One of the allegations of fraud is that WP represented to Wolfeboro that the site can be repaired when they knew full well that it could not.  Here, Mr. Brown leaves no doubt as to whether Wright Pierce said it, so the only element left is whether he knows full well that it cannot be done.

We’re not talking about whether Wolfeboro can convince the jury that it cannot be fixed.  That’s simply a difference of opinion.  The complaint reads:

D. Continuing to make written and oral statements to Wolfeboro that the Site could handle the design flow and could be repaired after the defects were discovered, despite knowledge that both of these statements were false, and making these statements for the purpose of continuing to generate engineering fees and to attempt to avoid liability.

The Town of Wolfeboro,  that’s you and me through our Selectmen and attorneys, have accused Wright Pierce of knowingly lying about it.  So I’m going to be there on Monday to see what proof our attorney’s have.

I read with interest today the Grunter’s meager coverage of the Wolfeboro v Wright Pierce lawsuit.  Now I know the Grunter hasn’t been to Concord to cover this event, even though it’s probably the biggest lawsuit in Town history.  I know because I’ve been there every day and haven’t seen hide nor hair of the Grunter.

In usual fashion, the newspaper gets it’s news about the town by asking the town.  So what we get is the usual sugar coated spin.  I’m not saying the town has a good or bad case, but I will say that the representation in the Grunter is misleading.

The paper says that the town has won 8.5 out of 9 rulings by the trial judge.  What they don’t mention is:

• WP moved to eliminate a count of Breach of Warranty, and rather than object, the town withdrew the count.
• Same with a motion by WP to eliminate a count of Gross Negligence.
• WP moved to prohibit the town’s expert witness Phillip Forsley from testifying.  Rather than lose that, the town removed him from the witness list.
• The town did not seem to enter their two expert witness reports as exhibits, presumably because they do not have one of the authors, Mr. Forsley.

I suppose you can count the motions that actually get ruled on, and not mention the ones you avoid loosing by essentially doing what you would have done had you lost.

For such a great case, it seems curious to me that Wolfeboro and their experts were at the RIB site on Easter Sunday, after the first week of trial, taking pictures and developing more evidence to support their case.

The town may have a great case and may win big, but it does the citizens no good to have the Selectmen tout artificial statistics to convince everyone how great it’s going without being honest about some of the major setbacks as well.  Better to just say it will be a long hard trial and leave it at that.

After 2½ weeks, Wolfeboro has finally rested their case.  Their last witness was the expert testimony of Robert Bowden, the hydrogeologist from Fuss & O’Neill.  Wolfeboro spent half of the morning session on direct examination where he continued to hammer on his opinion of lack of data and failure to provide the requisite standard of care.  Apparently, this testimony was also the capstone of the fraud allegation because he introduced a notion that WP had “reverse engineered” the project to achieve a 600,000 gpd permit.

Cross examination was the second half of the morning and about an hour in the afternoon.  WP’s attorney grilled him on his background and experience, then did his best to discredit the witness.  It seemed to be pretty effective.

Wolfeboro declined to redirect and rested their case, whereupon the parties conducted a long sidebar with the Judge.  Mr. Denehey, WP’s head lawyer, did most of the talking,  most likely saying Wolfeboro failed to make some or all of their case and moving to dismiss.

Nevertheless, the defense started right in by calling Bill Brown, President and CEO of Wright Pierce who has been sitting at the defendants table every day.  So far Mr. Brown has told the jury about Wright Pierce, their extensive waste-water and RIB experience in NH (they built 3 of the total 3 systems in NH over the last 10 years).  He explained how RIBs work.  He explained why they are almost always the best cost alternative for land-based disposal, and he explained how NHDES drives the project decisions based on cost. H e also explained how Wolfeboro needed a fast-track solution and how the project had to be compressed to meet the conditions of the Administrative Order.

We’ll see what the case filing system brings in the form of formal motions.  I don’t know about these things, but it would seem like there wouldn’t be any decision on motions until after the weekend.

After two weeks of testimony Wolfeboro is finally rolling out their real case.  Yesterday they brought out Prof. Jean Benoit from UNH.  In his direct examination, he basically said that Wright Pierce did a bad job and that the entire RIB site is now useless.  Unfortunately, I missed his cross examination in the afternoon so I have no idea how well his testimony held up.

As an academic who isn’t a Professional Engineer, Wright Pierce objected to his testimony but was overruled.  It was pretty clear that he is out of touch with the reality of the situation as he talked about how the system should have been started up at 100,000 gallons per day and gradually increased by 100,000 gpd over a long period while collecting lots of data and comparing to the model.  Wright Pierce couldn’t even get the town to keep it to the design 600,000gpd.

But all that aside, he was a credible expert and his explanations of the soil conditions and slope issues hit the mark.  He is a geotechnical engineer, but he was allowed to give his expert testimony about hydrogeology and modeling.

Today, Christopher Cullen of Fuss & O’Neill took the stand.  He is very credible geotechnical engineer with a pretty broad range of experience.  His testimony was straightforward and very credible.  He went over the slope failure and other issues at the site, and detailed the things he felt should have been “red flags” for WP. At the conclusion, he said the words:  WP did not provide the required standard of care.

At the heart of the testimony from both Prof Benoit and Mr. Cullen were the calculations made by SW Cole in 2011 report that the town used to renew the Groundwater Discharge Permit.  That report does does what the experts call a simple “”Darcy’s Law” analysis of a cross section of slope.  This calculation says that the cross sectional area can only support 340,000 gpd annual average with seasonal variation.  Nobody seems to be saying it’s not a valid way to look at it, and only seem to be arguing the dimensions of the cross section.

On cross-examination, WP made a point of demonstrating that they felt he overstepped his area of expertise by saying that WP had breached it’s standard of care as Prime Wastewater Engineers.  They argued that the information he referenced from the SW Cole 2011 report was overly conservative, which drew the sharpest response yet from Ms. Cull on redirect.

WP challenged his reasons for stating that the site cannot be repaired.  That was a curious exchange.  He agreed that two of the three conditions for remediation, slope stabilization and monitoring of recharge quality, were achievable.

Mr. Cullen had said that the last issue of dealing with the breakout water is easy when dealing with ordinary water as with a dam because the water can be collected in a toe-drain and just discharged anywhere because it’s clean water.  The problem here is that the breakout is still considered wastewater and most be re-introduced to the ground.  WP’s attorney then asked if a disposal facility could be built on the adjacent Wolfe 1-B site that was passed over by the town because Wolfe 1-A was believed to have more capacity.  He said he did not know.  This is the first and probably not the last we will hear about it.  I have to wonder if this is an idea that has been discussed with Wolfeboro.

At the end of the day, the last Fuss & O’Neill expert, Robert Bowdon, took the stand.  This fellow is a Hydrogeologist that runs a team at Fuss & O’Neill that primarily evaluates hazardous waste contamination.  Wright Pierce objected vigorously to his designation as an expert to render an opinion as to the standard of care for a Prime Wastewater Engineer.  Acording to their objection, the fellow is not a Professional Engineer and doesn’t have any wastewater experience.

At this point, I am totally confused as to the applicable standard for qualifying experts and allowing them to render their opinions.  I thought I had it pretty well understood after reading the order granting wolfeboro motion to limit testimony of three experts against Wright Pierce’s experts rendering opinions outside their disciplines, but this doesn’t seem to be the same standard at all.  Maybe when it’s all over, somebody will explain it to me.

Pretty good day today in terms of tempo.  Three witnesses through and a fourth on the stand for half an hour.

The day started out with Paul Heirtzler from NHDES.  I missed the start but caught the meat of it.  Mr. Heirtzler seemed to be straightforward and fair to both sides in his testimony.  He testified that the site is not in compliance at current 150,000gpd discharge and could not be at 600,000gpd without some kind of remediation.  He cited three conditions for rehabilitation of the site:

1. Stabilize the slopes
2. Eliminate the breakout that causes groundwater to come up and flow over the surface
3. Comply through monitoring with water quality standards in Nineteen Mile Brook and elsewhere where applicable.

On cross examination, he said that he had seen a plan to stabilize the slopes, and that monitoring water quality is a straightforward requirement that is already mostly in place.  He said he has seen no solution to the groundwater breakout problem but later said that if anybody can fix it, Wright Pierce can.

Next up was Gary Smith of Wright Pierce.  He is the engineer that was responsible for field operations at the site from concept to completion.  He interfaced with the modeling subcontractor.  Wolfeboro called him to the stand as part of their continuing effort to prove their fraud case.  As with the previous Wright-Pierce witnesses, Mr. Smith had reasonable explanations for the snippets of emails that Wolfeboro used to support the fraud claim.  I’ll be surprised if the judge and nine jurors have been convinced.

Up next was Neil Cheseldine, the Wright Pierce engineer that coordinated the Phase III Hydrogeologic report in 2007.  More of the same.

Last up was Prof. Jean Benoit, Wolfeboro’s Geotechnical expert from UNH.  When he finishes telling us about his academic program and European travels, I expect he will say that in his expert opinion it was a no-brainer for Wright Pierce to have required a slope stability analysis prior to constructing the RIBs.

As promised, here’s a quick run down of Mr. Pelletier’s testimony.

Mr. Pelletier is a relatively high level official in NHDES.  He said he is in charge of “anything to do with water”.  His signature is on Wolfeboro’s 2007 groundwater discharge permit.  My recollection is that there were two significant things elicited from Mr. Pelletier.

The first is that he stated the way average monthly flow is computed for purposes of compliance with the permit is to simply divide the total flow in a month by the number of days in the month.  This is yet another different version of the intent of the permit.  During other testimony three different statements of permitted flow were identified, and in an email from Mitch Locker provided to Wright-Pierce in 2009 and forwarded to the town, it was specified quite differently.  So it will be interesting to see if Mr. Locker can reconcile these differing interpretations.

The other thing he testified to was a site visit that he was present at this past winter where he describes saturated soils and at a subsequent meeting where he was quoted as saying the “site is cooked”.  In his testimony he back-peddled a little from that characterization, claiming it was some kind of description for saturated conditions.

On cross examination he admitted that he doesn’t actually do any of the analytic work in issuing these permits and relies on his staff and the documentation provided by the professional engineers working with for applicant.

The docket shows that the court held a hearing Friday afternoon on a motion to quash a subpoena to Mr. Harry Stewart who is apparently a head-honcho at NHDES.  One of the argument when these government agencies don’t want to testify is that they should not waste the taxpayer’s money providing expert witnesses for litigants.  The litigants should hire their own experts.

Wright Pierce asked for one NHDES witness, and was denied.  Wolfeboro has four NHDES employees on their witness list and apparently NHDES is fine with that.  Makes you wonder if their policy might be politically driven.

With so much of the case centering on the 600,000 gpd average specified by NHDES, I’m wondering if that wasn’t an error on their part.  Under some of the interpretations being suggested, permitted loading could have been millions of gallons per day as part of a four week averaging.  The phase 3 report that was submitted with the permit application offered no support for high transient loading, and possibly NHDES now feels they are on the hook for not picking that up.  I’ll be curious to see what the remaining three NHDES people say.

The jury went home at 1:00pm.  The judge and lawyers were sticking around to argue a motion to quash a subpoena for Harry Stewart of NHDES to testify.  NHDES is opposing on the grounds that Mr. Steward has nothing to offer that cannot be provided by other lesser NHDES employees.  Wright Pierce says he had a private conversation with someone from Wright Pierce that nobody else is privy to.

Today they finished up reading in a deposition and managed to get in the testimony of Rene Pelletier from NHDES.  So this entire week we got through something like 6 witnesses and read in a deposition.  At this rate, Wolfeboro alone will consume all of next week.  You have to wonder if Wolfeboro’s strategy isn’t to consume virtually all of the reasonable time and leave the judge and jury to blame Wright Pierce when they enter week four.  I’m still waiting to see how that org-chart they created yesterday while converting Melissa Hamkins testimony from a 2 hour prediction to a five hour reality.

I’ll have more over the weekend about Mr. Pelletier’s testimony and my general impressions after nine days of Wolfeboro presenting their case .

Cross examination of Mr. Atherton went pretty quickly as it was a backward testimony.  That is, Wolfeboro called him to the stand and his own attorney cross examined.  Somehow I’ve got the feeling that unless there is a big surprise that needs fixing, we won’t be seeing Mr. Atherton on the stand again.

Next up was Melissa Hamkins, the Wright Pierce manager who coordinated most of the work.  They spent the better part of an hour making an org chart which was hardly referred to again.  Be curious to see what value, if any, that might have down the road.

Most of the questions, nearly five hours worth, were focused on the overloading issue.  First trying to establish that the 600,000 gallon per day permit number had no daily limit component, then that there was no explicit warning given to the town on a regular basis, and finally that Wright-Pierce should have been alerted to the April 2007 overloading because of an email that mentions a month-to-date total.  None of the approaches seemed to hit the target, and the responses were considered, reasonable, and credible.  It’s hard to believe that all nine jurors would think otherwise.

There was an extended line of questioning where our attorney harped on the idea that there are two one-million gallon per day pumps to feed the force main to the RIB site.  Ms. Hamkins, and indeed Mr. Atherton before her, explained that municipal waste water facilities require backup pumps, and the operational capacity is one million gpd.  Presumably our attorneys consider the existence of two pumps to be a compelling argument that Wright Pierce intended the RIB site to be operated at very high daily loading rates.  After several sustained objections for repetitiveness, the judge finally had to object himself and order Ms. Cull to change the subject.

At least we seem to be off the fraud thing for now and the questioning seems to be focused on making the basic case, or at least trying to disarm the contributory negligence defense.  At the end of the day Wolfeboro was reading into the record a deposition by Mr. Clifford Lippett from SW Cole.

Tomorrow finishes the deposition reading and probably gets through one or two NHDES witnesses.  Don’t expect too much as the jury has already been told they can go home at noon.

Cross examination of Blake Martin went fairly quickly today.  Next up was Jesse Schwalbaum, WP’s hydrogeologic modeler.  Our attorney Mr. Pasakarnis did a competent job of working through the mechanics of modeling and establishing the chronology and meaning of the model results produced by Mr. Schwalbaum.  They tried to get him to admit to doctoring up the results, or at least to cast doubt on changes made by Wright Pierce during the process.  He had pretty good answers to all of those questions.

Next up was Peter Atherton, the WP Vice-President at the heart of the matter.  Our lead attorney Mr. Deschenes grilled him for a few hours, all the while trying to put some meat on the bones of the town’s fraud allegations.  Mr. Deschenes may be developing a more subtle strategy to prove this serious allegation, but there were no obvious admissions by Mr. Atherton.  In fact, Mr. Atherton seemed to do a good job of explaining the snippets of emails that Wolfeboro had used, when amending the complaint, to suggest that fraud was plausible.  He went on to do an excellent job of tying together the concepts of annual average and daily flow as it relates to Wolfeboro’s Wastewater System, and to explain why various people on the team had different perspectives depending on their responsibilities.

Wolfeboro still has a few Wright Pierce witnesses on their schedule and may yet produce some meaningful evidence of fraud, but I haven’t seen anything convincing yet.  I’m not going to hold my breath.

Dave Ford finished his testimony as the court broke for lunch.  No matter how it goes, Dave can be congratulated for keeping his cool and holding out through two and a half days of cross-examination.  Where it all goes will take some time to determine.

Next up was Russ Howe, our WTP manager.  Russ was clearly nervous about this appearance, and was accompanied by a fellow that was probably a lawyer for Woodward and Curran.  It all went pretty smooth on direct examination.  Wright Pierce did themselves no favor in their cross examination.  Ms. Malone was very aggressive and contrasting her demeanor with Mr. Howe’s soft spoken and seemingly unscripted testimony seemed inappropriate.  I suspect the jury felt pretty much the same way.

Last was Blake Martin from Weston and Sampson, who also was accompanied by a gentleman that looked to be an attorney for his company.  He finished direct examination and was just starting cross at the end of the day.

Not that short.  The court scheduled 9-2 rather than 9:30-5, but they catered the jury lunch at 40 minutes instead of an hour and a quarter and ran over to 2:30.  So all that without an afternoon break works out to about 275 minutes, where an ordinary day is about 345, so 20% less.

The entire session was ongoing cross-examination of Mr. Ford.  I don’t know if they intend to cross him about the damages testimony, but that could easily keep him up there all of tomorrow.

What’s most interesting to me at this point is hearing all of the issues raised and decisions made from startup in 2009 through the Town declaring it a total loss and suing Wright Pierce in 2012.  I can’t say that I recall a single Selectman’s meeting where any of those ongoing problems or decisions were explained to the public.  Apparently the whole thing was handled in non-public session.  I guess we’re on a need-to-know basis, and they decide what we need to know.

Dave Ford is still on the stand.  The defense says that they are half to three quarters through their cross-examination.  With the expected redirect by Wolfeboro to follow, and a short day (9-2),  it will be close as to whether Dave will be finished Monday.  Tuesday will be Ross Howe, our contract operator at the WWTF, followed by Mitch Locker of NHDES.

At this point, I think it’s better to just report on the schedule, weather and traffic and save the commentary until it’s over.  What really matters now is how the two parties think it’s going.

Spent most of the day watching the trial.  Dave Ford was on the stand the whole day, still testifying for the home team.  He was nearly finished when they recessed for the day, so presumably the cross-examination will dominate tomorrow.

Apparently the Wright Pierce objection to Mr. Ford testifying as to damages had no legs.   The judge allowed virtually every detail to the steady objections of the defense.

Regardless of how this turns out, I have to say that Dave Ford has been rock steady for two days.  I’ve heard it said that the expectation is that the trial will go for at least 2½ weeks.

I hope the jury holds up.  They did seem a bit more engaged today, although somewhat annoyed by the many sidebar conferences.

Went down to Concord today and sat in on an hour and a half of Mr. Ford’s testimony for the Plaintiff.  The jury is nine people, 7 men and two women.  All but one appeared to be pretty bored with the pace and repetitiveness of the questioning.  I guess that’s the way it has to be to establish the requisite facts to support the case.  They perked up from time to time to write things down, but a hot pot of coffee would go a long way.

Our attorney, Ms Cull, delivered the questions.  From where I was, it didn’t look as if she tried to connect with the jury at all.  Dave did a pretty good job of talking to them, especially when he had some common sense comment to make.  You know how Dave can do that. The interesting part, and the part that should engage the jury’s attention, will be the adversarial questioning during cross-examination.

We had three attorney’s present and Selectmen Murray and Silk.  Wright Pierce had two attorney’s and three men who were probably WP engineers.  No doubt one was Mr. Atherton.

I was the only spectator.

There are a lot of people following the trial through the blog.  Unfortunately, there is little report today.  I called the courthouse this morning and was told that the trial had commenced and they were doing jury selection.

A note was placed on the Electronic Case File stating that mediation was conducted yesterday and it lasted 4 hours and 45 minutes.  I’ll probably head down there tomorrow and take a look.

Nothing has been placed on the docket concerning the ordered mediation session today.  Wright Pierce has filed a proposed special verdict form that walks the jury through the various elements of the counts in the complaint in order to arrive at a verdict.  No doubt Wolfeboro will have their own take on that.

WP also filed an objection to some exhibits that Wolfeboro has proposed.  Most are correspondence between NHDES and Wolfeboro’s attorneys.  WP’s primary objections allege that the documents are a veiled attempt to introduce NHDES statements as expert testimony, when the court has limited them to being fact witnesses.

Another document relates to recent reports by the town’s experts Fuss & O’Neill that were produced in February and April (actually Valentines Day and April Fool’s Day) of this year.  Wright Pierce objects on the grounds that they are supplemental expert reports that were produced more than a year after the deadline for such supplements.  They go on to argue that if those reports are deemed admissible, they should be allowed to offer the Haley & Aldrich remedial plan in rebuttal and their experts should be allowed to testify about it.  Presumably they will also want to introduce a supplemental report that Haley and Aldrich produced recently in response to the late Foss & O’Neill reports.

And of course they close by reiterating their objection to Wolfeboro presenting evidence of damages without an expert.  As yet there is no ruling posted concerning the outstanding objection of WP to Wolfeboro’s damage testimony, but this motion seems to be looking past an unfavorable result for WP.

Today’s objection is clearly something that WP has been working on for days, and they now follow through by filing it with the court.  I suppose it’s possible that the mediation was fruitful and that a settlement is possible, but at least WP is not letting up.

Yesterday’s collapse of what was ostensibly an attempted settlement conference creates many questions for me.  When this is over, the blog will pursue unsealing of the minutes of these deliberations to find out what happened.

It was apparent, despite WP being characterized as a “no-show”, that the Selectmen and Town Manager were aware WP would not be attending.  If there had been any expectation of their presence, Mr. Ford and the town’s attorney’s would surely have been there.  As it was, it was only the Selectmen and the Town Manager.

It also seems unlikely that WP would fail to attend the meeting if they had requested it.  So it seems probable that the town had invited WP and their attorneys. It is also unlikely that the Board of Selectmen would initiate a meeting with WP and their attorneys to discuss carpooling to the trial or where to have lunch.

No, this most likely was the failed result of an attempt by the Selectmen to initiate a settlement conference, and it comes as no big surprise that WP was not interested.

You will recall the open letter that WP published to the BOS and citizens of Wolfeboro in the Feb 13 Grunter.  There, WP offers to participate in a mediation process.  Indeed, in subsequent correspondence between the BOS and Wright Pierce, WP reiterates their position that they are ready and willing to settle, but only within the framework of a professional mediation.  From what they have said publicly, Wolfeboro seems to want to settle first and mediate later.  Hence the deadlock.

Continuing this string of conjecture, you have to wonder what might have prompted Wolfeboro to request a settlement conference, if indeed that is what happened.  The festering issue of the integrity of the damages claim and now open question before the court of whether Mr. Ford will be allowed to define, explain and defend the damages suffered by the town might have something to do with it.

Should the court uphold WP’s objection, the town’s case would be eviscerated. It’s not  hard to imagine that the judge would dismiss it.  That said, at every turn my impressions of the import and substance of these issues has been that of a layman and sometimes surprised by the subtleties of the law as applied in decisions of the court.

But that’s exactly what this issue is about.  The judge, in no uncertain terms, has put WP on notice that they will require expert testimony to pursue their defenses of remediation and betterment.  Both topics that are intertwined with the damages claim.  WP, in their objection to Mr. Ford testifying to the damages has raised that issue.  They argue that the court defines these damages in such a way as to require WP to offer expert testimony, yet Wolfeboro is saying the damages are easily understood by an average person.  In layman terms WP is arguing that you can’t have it both ways.

The question for all of us is:

Why did the town refuse to meet with a mediator?

What was the downside?  You get a neutral legal scholar to listen to both sides, review the evidence presented, and offer an opinion about the merits of both sides.  The results are non-binding and not admissible in any subsequent trial.  Many of the issues in these case defining rulings that have resulted from the pretrial motions would have been raised in mediation.  Call it a reality check.

For better or for worse, we’re all in.

The BOS held a non-public meeting today at 4:00pm.  It lasted about 45 minutes and though the agenda indicated that Wright-Pierce and their attorneys would be present, they were not.

The BOS is playing it close to the vest.  They don’t want anyone to know anything.  Presumably, having the citizens know whether they are or are not talking with Wright Pierce would compromise their position.  I’m not exactly sure how, as Wright-Pierce certainly knows if they are talking, but we lowly citizens are not in the loop.

Such intrigue.

Before anyone gets their hopes up that a big settlement in the RIB case is probable, it’s important to know that WP has filed a new objection in the case.  You will recall that the foundation of the case was the $10+ million damage estimate produced by the town’s then expert Mr. Forzley of Fuss and O’Neill.  WP had a field day with his deposition and subsequently, Wolfeboro removed him from the expert list.

In his place, the town has stated that Mr. Ford will testify as to the damages suffered by the town.  This is all covered in a previous blog post several weeks ago.  Apparently WP made an issue of the damages claim at the pretrial conference, asking that the damages claimed for each count of the complaint be broken down so as to avoid the jury awarding duplicate damages.  The judge ordered Wolfeboro to do so.  In their response, Wolfeboro simply said that all of the damages apply to all of the counts.

WP says that’s a non-answer, and objects in their most recent filing .  They say that Wolfeboro has not complied with the court’s order.  Moreover they say that Mr. Ford, as a fact witness, cannot testify because an expert is required, and that the damage spreadsheet provided is full of errors.

If WP is to be believed, the town’s case has fallen apart due to mishandling of the damages claim.  Surely Wolfeboro’s response will put things back on track.  Maybe we’ll find out how serious a problem this is this afternoon.

The Board of Selectmen have noticed a special meeting tomorrow at 4:00pm to start with a non-public session and then, according to the agenda, it looks like a public conference with Wright Pierce and their attorneys.

With the trial scheduled to start on Tuesday, it’s not hard to imagine what this is all about.

That’s when Jury selection will begin.  Each side gets three wild cards.  Total ten jurors to be selected.  Six must remain by the end of trial.  The decisions must be unanimous.

The trial starts immediately after jury selection.  There are a few final details to be attended to by the parties, everything is in this easy to read final pretrial order.

Also today, the judge denied the remaining pending motions to preclude evidence of total-loss and betterment damages.  He also responded to another motion to seal the remedial plan, stating unequivocally that it will not be allowed into evidence at trial, stopping just short of prohibiting anyone from even thinking about it  during the trial.

I’ve been wrong about a lot of things as I try to follow this lawsuit, but I’m going to stick my neck out again and say that it looks to me like the judge is expecting this to be settled before trial.

The docket shows the final pre-trial conference happened yesterday.  Three lawyers from each side were present.  It lasted almost two hours, only 13 minutes of which were held in the open courtroom.  The rest was in the judges chambers.  Apparently there was a lot to talk about.  I figure the meter runs at about $2,000/hr between both sides.  The trial should be in about two weeks.

The court substantially  upheld  Wolfeboro’s motion to limit testimony from several of WP’s experts.

Roger Moore is precluded from testifying that the RIB site can be repaired.  The court cites his statements in deposition where he fails to say specifically what remediation might be required.

John Kastranos of Haley and Aldrich is prohibited from testifying as to whether WP met the standard of care for any services other than his own discipline.

John DeGinova likewise will be prohibited from testifying as to standard of care for other than his discipline.  Additionally, Mr. Genova will be prohibited from testifying that the site can be repaired or remediated because their report does not specifically describe how that might be done.

This should be no surprise to WP as this is a follow on to the court’s refusal to admit their supplemental report where they do explain specific remedies.

The judge says that Mr. DeGenova can testify that the F&O conclusion of total-loss is not adequately supported because of their failure to do the studies outlined in their report.  I’m going to speculate here that means WPs pending motion to suppress Wolfeboro’s total-loss theory of damages will not be upheld, and it will be Mr. DeGenova vs F&O at trial.

The court ruled on several key motions from both sides.

The court order denying the motion to preclude untimely documents, fact and expert testimony filed by WP.  This motion dealt with several issues:

• Wolfeboro had provided thousands of documents to WP after the end of discovery.  Wolfeboro argued that most of the documents were previously disclosed as part of earlier submissions and were simply reorganized in support of the damages claim.  The other documents were explained as documents that were not previously available, such as spreadsheets updated to reflect operations to the present.
• WP had objected to late expert opinions that they say were expressed in the depositions of several Wolfeboro experts.  The court responded that this wasn’t new testimony.
• WP objected to expert testimony and new information by the fact witness Dave Ford.  The court declined to attempt to classify that testimony and through denial of the in limine motion, leaves WP to object on a point by point basis at trial.

What looks on the surface as a win for WP in the court’s order denying Wolfboro’s motion to strike affirmative defense of mitigation and comparative fault , bode poorly for WPs chances with these defenses at trial.

The judge started out by saying that Wolfeboro should have addressed these issues earlier by requesting summary judgement.  He goes on to recommend another avenue that Wolfeboro can pursue, and in the discussion states pretty clearly that in both cases, WP has wrongly asserted that these defenses can be made without expert testimony.  The judge put WP on notice that expert testimony will be required, although it seems like that will be difficult under the procedural rules that appear to prohibit new expert testimony.