wolfeblog

That’s what the town has told Wright Pierce with regard to the RIB site.  Keep Off!  WP wants to have a wetlands expert look at the site to address concerns of the NHDES that the slope stabilization plan recently reviewed may involve issues with the EPA.  Wolofeboro won’t allow them on-site unless WP agrees to give Wolfeboro the report.  WP has filed a Motion to Compel site visit with the court to compel Wolfeboro to agree to the site visit without such conditions.  Here’s the exchange. Nice to see both sides working together so well. Continue reading →

Tonight I attended the Selectmen’s meeting and during the public question/comment period, I got up to ask Continue reading →

WP has filed a new (amended) motion to continue and extend deadlines, and it contains some interesting developments.  Recall my post earlier this month where I suggested that there may be a way to remediate the problems at the RIB.

The amended motion says that as far back as December of 2012, WP’s expert witness Haley and Aldrich, Inc.  (H&A) offered their opinion that Continue reading →

On Friday, Wright-Pierce filed a  motion for leave to amend joint discovery   The motion to amend joint discovery would extend the deadline for depositions from Oct 18 to January 6.  The trial date would be moved from Feb 19 to April 7.  Wolfeboro does not assent.

Wright Pierce says that more than 30 depositions will be needed, yet only one has been started and not completed.  They say that Wolfeboro has postponed completion of that deposition as well as another due to an ongoing dispute about production of some email attachments.

Other reasons cited were activity on another large case in New York, WP’s attorneys moving to new offices, a family trip to Disney World in November and Wolfeboro’s attorney on vacation at the end of November.  Not the most productive time of year.

For what it’s worth, WP says that Wolfeboro has been unwilling to submit to arbitration.  No big surprise there.  Wonder if that will change if the town doesn’t pony up another half-million in next year’s budget?

Another development that Dave Ford had hinted at awhile ago is that there appears to be some kind of remediation plan proposed by Wright-Pierce.  Apparently there’s a meeting with NHDES tomorrow, Oct 7, to discuss whether what WP is proposing could be permitted.  All along Dave Ford has been saying that what WP was proposing was illegal.  Now, either this is something new, or some variant of the original proposal is starting to look more realistic.  We should find out soon enough.

It’s hard to imagine why Wolfeboro’s attorneys would resist this motion to provide additional time to let the possibility of a relatively inexpensive solution be explored.  I expect we’ll find out soon as Wolfeboro will probably file an objection this week.

On August 30, Wolfeboro filed their Amended Complaint to include allegations of fraud and a request for treble damages under NH RSA 358-A.  Yesterday, WP filed their  Response to the Amended Complaint.

No big surprises here.  Like the amended complaint, it’s substantially the same as the original except for the inclusion of the new allegations of fraud and fraudulent misrepresentation.  WP denies these allegations, paragraph by paragraph, in much the same manner as the answer to the original complaint.  However, unlike the original answer, they now make the claim that Dave Ford overloaded the RIB during start-up, in deliberate disregard of WPs recommendation to keep it to 600,000 gallons per day.  They further allege that the breakouts that occurred as a result of that over-loading were predicted by the model and validate the accuracy of the model.

So it looks like, beyond the boilerplate procedural stuff like venue and statute of limitations, they intend to place the blame squarely on Wolfeboro for breaking the thing during the first month of operation.

No way I see the town budgeting another half-million for a trial next year, but a part of me hopes it goes there.  I’ll be in the front row.

Wolfeboro’s attorney filed the actual amended complaint today.

Today the court granted Wolfeboro’s long argued motion to amend it’s original complaint to include allegations of fraud and seek treble damages.  Wolfeboro was denied the new claim of Fraud in count VI because it “failed to allege all elements of a fraud claim”.  The new claim of Fraudulent Misrepresentation in count VII was allowed, as was the associated request for consideration under RSA 358-A for treble damages.

This ups the ante somewhat and increases the potential exposure for Wright-Pierce.

As I read the ruling, the court’s decision isn’t based on the merits of the allegations except to the extent that they are plausible and if true would prove the elements of the count as a matter of law.  (That’s why count VI Fraud was rejected. The term is futile meaning even if true, it doesn’t address all of the elements necessary.)

There were some assertions by Wright Pierce (and Wolfeboro) that were questioned in the back and forth of objection, reply, surreply, etc.  In what appears to be a sarcastic footnote, the court offered that they would consider the merits of what Wright-Pierce characterizes as “obvious” in the context of a request for summary judgement.  That seems unlikely given the reciprocal risks.

So now there are ten weeks or so until the Nov 1 deadline for completion of discovery and arbitration.  If there is no arbitrated settlement, presumably the following three months will be dedicate to preparation for trial in February 2014.

I suspect that with these new stakes Wright Pierce will be more inclined to settle and Wolfeboro’s rapidly depleting legal budget will provide equal incentive to them.

At the Selectmen’s meeting Wednesday, Dave Ford told the Selectmen that he is working with Wright-Pierce on an inexpensive fix for the RIB.  There were no details except to say that the lawsuit is still ongoing.

WP’s past proposals have been described as “illegal” so I wonder if this is a new idea, or just people being more receptive to the old idea.  I talked to the DES guys a few years ago while touring the RIB site, and the impression that I got was that they would be willing to discuss unorthodox solutions in the interest of making this work.

One thing that has been discussed in the past is the use of WICKs.  Essentially a WICK is a big well into which the effluent is dumped.  My understanding is that there is already a small WICK on the site.  If the problem is a layer of soils that is insufficiently permeable and causing side breakout, WICKs could potentially get the effluent through that layer to better soils beneath.  They require well filtered effluent and regular cleaning, so the operational costs are higher, but they are a relatively common and well understood technology.

Previous offers have also been described as engineering only with the town picking up the cost of the actual repairs.  The Selectmen were reluctant to ask the voters for more money, hence the lawsuit.

Now I wonder if WP is offering to pay for the actual work, and whether we will see any of the half-million we’ve spent to date on lawyers.  My guess is that the terms of any such settlement would depend on whether the motion to amend is granted.

It looks as if the combination of RIB and spray fields is keeping up with the annual demand, so even if a fix only gets us to say 300,000 gpd in the RIB, we would be in decent shape.  I expect the court will rule fairly soon on the motion to amend.

As anticipated, WP has filed an Objection to Wolfeboro’s request to supplement the amended complaint.  WP starts out by saying that Wolfeboro is briefing this motion “Ad Infinitum”.  They say that the amendment process has run it’s course with the sequence of motion to amend, objection, reply to objection and surreply.  That it was Wolfeboro’s choice to do early discovery and production of expert witness testimony, and now changing the nature of the complaint, and continuing to supplement the amendment, drags the suit out and prejudices WP because they have to backtrack to defend the new allegations.

Also, in direct response to Wolfeboro’s new allegations contained in the supplement, WP has supplied an affidavit and maps to put the issues in context.

Wolfeboro had alleged that an email dated Feb 6, 2007 between Mr, Schwalbaum, the hydro geological modeler, and Mr. Smith of WP, was proof that WP had directed Mr. Schwalbaum to falsify the simulations.  The  affidavit by Mr. Schwalbaum says that on Feb 6 the modeling was at a preliminary stage, and the exchange was nothing more than ordinary back and forth that is customary in developing and calibrating a simulation model.

Wolfeboro had also alleged that a handwritten note that Mr. Schwalbaum made to himself in 2009, after the RIB had failed, proves that WP falsified the model.  Apparently Mr, Smith had directed Mr. Schwalbaum, back in 2007, to change some of the soil types in the model, which had the effect of increasing the capacity of the modeled system.  After the failure, realizing the seriousness of the situation, Mr. Schwalbaum made the note to document that he did not have anything more than Mr. Smith’s directive  to backup the change.  In the affidavit,  Mr. Schwalbaum states that he has now seen the actual field reports of tests and borings that support Mr. Smith’s directive.  He states unequivocally that the documentation supports the changes and the documents are provided as exhibits to the objection.

So to sum up, WP is saying that the supplement to the amendment is not based on evidence and is beyond the scope of allowable filings.

Will Wolfeboro try to get the last word?  Will the court allow the supplement?  Will the court grant the motion to amend?  I think we should find out soon.

Today Wolfeboro, with assent from WP, filed a request for an extension to the deadline for admissions.  Admissions are a form of discovery where one party submits statements to the other which the other must either admit or deny.  Wolfeboro cites the receipt of a batch of emails on July 3 as the reason for needing more time.  The court granted the extension to August 30.

At the last Selectmen’s meeting, there was a “matter of litigation” to be discussed in non-public session.  We have no idea if that relates to this request, but you can be sure that after this case is settled, I’m going to request the minutes of all of the non-public sessions related to this case be unsealed and made available.  I’ll be curious to see what went on behind the curtain.

Today I got an update on how much the Town has spent to date this fiscal year on the RIB lawsuit.  As of their last billing on June 14, the total is about $230,000.  The town has budgeted $500,000 through December 31.

The way both sides have been burning the midnight oil on motions, objections, and supplemental filings, I have to wonder how long the remaining $270,000 will last.  Our attorneys must have sensed that this would happen because they postponed the actual trial until next fiscal year when some fresh money could be available.

There’s more than one way to skin a cat, and WP’s attorneys know that the citizens of Wolfeboro will be hard pressed to put up another million to finance a trial.  It may be hard to determine which party will prevail, but the attorneys always win.

As expected, WP filed it’s sur-reply memorandum right after being granted leave to file.  Shortly afterward, Wolfeboro filed a motion to supplement the amended complaint to supplement the complaint with some emails that they say were recently produced by the modeler.

The emails contain a dialogue between WP and the modeler in which they agree that the model will not support 800,000 gpd but will support 400,000gpd.  WP is asking the modeler to put together a documemtation package that supports the 600,000 gpd.

All that would seem to be damning for WP except that all of this dialogue is before a survey error is revealed where the survey data was low by more than 20 feet.  Subsequently, WP paid for the modeller to rerun the simulations after the corrected data was made available.

WP’s attorneys are also representing WPs modeler, who was served a subpoena for all communications concerning his Wolfeboro related work.  Wolfeboro is maintaining that the emails produced by the modeller do not include some disclosed by WP and visa-versa.   They now want more information about the technical aspects of both defendants electronic information storage and retrieval and method of producing relevant communications.

This latest round of finger pointing will probably drag this out quite a bit longer.  Until the motion to amend is decided.  Needless to say, WP did not assent to this motion so they will probably be filing an objection to it soon.

Today the court granted WP’s motion to file their surreply memorandum in response to Wolfeboro’s reply to WP’s objection to Wolfeboro’s motion to file an amended complaint.  Are you still with me here?

WP must file within 48 hours and that folks should be the final chapter in the back-and-forth concerning the motion to amend.  Subsequently, the court should rule on the original motion to amend, and we will have a better idea where this thing is headed.

As expected, Wolfeboro has filed their Reply to objection to amend.  Skimming the new filing, it is substantially the same as the memorandum that they filed with the motion for leave to reply filed on June 12th.  Still outstanding is WPs motion for leave to file a surreply in response to this reply.  I expect the court will rule on that soon and then take up the matter of whether to grant the motion to amend.

Today, the Friday after 4th of July, the court granted Wolfeboro’s “Motion for Leave to File Reply Memorandum in Response to WP’s Objection to Plaintiff’s Motion for Leave to Amend“.  The proposed reply brief was filed with the Motion for Leave, but the court now wants Wolfeboro’s attorneys to file the actual reply memorandum within 48 hours.

So the brief must be officially electronically filed by sometime on Monday.  Maybe this is standard procedure, and maybe they have the thing ready to go,  but I can’t help but think it looks like there might be some reason that the judge wants to ruin this guy’s holiday weekend.

Hope they don’t charge double-time for that.

WP has filed their surreply memorandum response to Wolfeboro’s response to their objection to Wolfeboro’s motion to amend the complaint.  It’s called a surreply and as I understand it must be very brief.  It is.

Their argument is more defined and emphatic.  They are stating plainly that the town overloaded the RIB in direct disregard for Wright Pierce’s start up recommendations and that caused the tunneling and breakout that is occurring.  They support their arguments with excerpts from their expert’s report which claims that Wolfeboro declined to work with WP in investigating the problems early on and to explore recommendations to mitigate the damage.

They also say that procedurally, this amended complaint violates the rules for submission because it so changes the nature of the defense that they would have to go back and re-engage their expert witnesses to refute the new allegations at considerable expense.  They assert that the deadlines that were set for expert testimony were proposed by Wolfeboro to facilitate early arbitration.

At least Wolfeboro didn’t file an intention to reply to the surreply to the reply to the objection to the motion to amend.  I hope the court now has everything that they need to rule on this leave to amend.

I’ve had some time to go over the ongoing filings in the RIB lawsuit, and talked to a few people, and here’s my take.

This motion to include allegations of fraud with associated treble damage is the whole ball game for the town.  Without it, I don’t think the risk and expense is worth the potential return.  Lawyer’s I’ve talked to say that it would be unlikely that the town would receive any reimbursement for legal fees, especially if any part of the RIB failure is found to be due to actions on the town’s part. Putting treble damages on the table, and the potential to drag WP through the mud for fraud might increase their willingness to settle.

We should find out soon if the court is going to go for it.  Each side has presented different versions of the activity in 2007 when the system was proposed, and in 2009 when it was completed and started up.  By themselves, both sides present good arguments.  But when you step back and look at the whole picture, it’s hard to understand the basis for the fraud claim.

Without a doubt, the system isn’t working at anywhere near the design and permit capacity.  I think right now it’s down to about 25%.  So mistakes were made.  Expensive mistakes.  But what our attorney’s are claiming just doesn’t make sense.

Why would WP design and have the town build a system if they knew it wouldn’t work?  Our attorney’s say it was to get the design fees and to profit by enhancing their reputation.  I can’t see how building a system that failed so miserably enhances their reputation.  Does anybody think they will be hired to build more failed RIBs?  With respect to the fees, WP was under contract to find a solution to the NHDES administrative order that imposed a moratorium on new sewer connections.  They could have continued to investigate other solutions and received fees to implement something that would work.

All of this alleged falsification of the model and fraudulent claims were made prior to the phase III Hydrogeologic report that was used to obtain approval from NHDES before the town committed to buy the land and build the system.  Seems like if the model showed the capacity would be 300,000 or 150,000, they would have said so, pocketed the fees for investigating that site, and moved on to study another solution.

The email trails show there are at least half dozen people at WP who would have had to be in on any conspiracy to defraud Wolfeboro and misrepresent the potential of the site.  How does an otherwise reputable firm suddenly become a den of scheming hustlers?  Only a lawyer could make that accusation with a straight face. Why would a consultant whose stock in trade is producing accurate hydro geologic models offer to falsify his work product?  How much would they have paid him to do it?  Would it be enough to justify ruining his reputation? It doesn’t make any sense whatsoever.

We have a tough problem with sewage effluent.  When the town went with a sewer system, the state was saying that they would put in an interceptor to take the effluent away.  They did so on the other side of the lake. Spray fields were an interim solution.   Our experts say that the hilly RIB site was a bad choice.  But was there a better site?  Several were studied.  The others had problems and WP said so.  We looked at expanding the spray fields.  That was a PR nightmare with the threat of eminent domain.  Some people wanted to freeze it and let it melt in the spring and summer.  Everybody wanted this to work, and thought it would. It’s basically a big leaching field on the outskirts of town.  Unfortunately, even though the site passed the “perk” test, there apparently are soils inside the hill that are not as permeable as was thought.

So mistakes were made.  And there’s some bad luck.  And without arguing about who’s at fault – there’s the overloading.  A part of me wants to see a happy ending for the town, and another part is disgusted with the tactics that the town’s attorneys feel compelled to use to win at any cost.  To my mind the bottom line is that everybody did what they are supposed to do and things still went wrong.  I think our lawyers know this and realize that a “common garden variety” suit as they call it will result in a small verdict, probably apportioned according to responsibility where the town’s overloading will be a significant factor.  So they’re trying to trump it up into something it isn’t.

One thing I failed to consider about this suit is the entertainment value.  OJ step aside.

I’ve only skimmed the Response to objection to amendment and Response to objection to amendment exhibits.  As expected, our attorney responds point for point.  I’ll post my comments when I have more time to read it thoroughly, but the bullets seem to be:

• The motion is timely because the discovery was delayed and further proceedings have not begun (i.e. depositions).
• WP was complicit in the initial high loading.
• The emails, by their nature of being signed and dated provide sufficient specificity to the allegations.
• WP’s attorney’s are also representing the modeling subcontractor who has not responded to requests for discovery of his internal documents, thus denying the town of the opportunity to be more specific about his alleged falsification of the model.

There’s an interesting chain of emails from late April 2009, just after the first “unexpected event”, that shows an almost daily exchange between Dave Ford and various WP people.  On the one hand, WP is saying that they would agree to say that the loading was a joint decision.  Yet earlier emails from February  show that Dave had proposed a loading of exactly 600,000 gpd and that was what was agreed upon.

With a five month extension, and all of this wrangling with motions, responses, responses to the response, etc. I have to wonder how far that half-million bucks is going to go.  The attorney’s for both sides must be loving this.  It’s a classic win-win.

Oh, and WP also filed their intention to respond to the response to the response.

I just hope we don’t end up with the lose-lose.

I don’t know who is showing keen interest in these latest postings concerning the RIB lawsuit, but the traffic has been high and it doesn’t look to be the usual suspects.  Judging from the stats that I get, there seems to be a lot of interest in the RIB Startup Field log, indicating to me that somebody is looking more closely at the pump hours discrepancy.

There seems to be much less interest in the actual filings that make the questionable claims.  If there were, readers may find that while the overloading claimed in April may be exaggerated, there appears to be solid evidence of overloading in March, and the town’s own records of April flows show an undeniable overloading at the 800,000+ level during the days leading up to the first slope failure.  Then there’s the admission by the town that they did overload the thing.

So while WP may have some explaining to do about their interpretation of the field logs, the fact remains that the reported flows are adequate to support their position.

I’ve been going over the Startup Field log that WP used to support their contention that the Town was overloading the RIB at up to 2 million gallons per day.  The thing is barely legible, and I don’t quite understand the figures that WP highlights on each page to support their claims.  It’s supposed to be a gallons pumped figure, and throughout March, seems to be the incremental reading from the flow meter that matches the towns reported flows.

The same figure in the April entries starts to be way more than the flow meter readings indicate.  There is a notation elsewhere that an additional new meter was installed at the end of March, and if the numbers were slightly off, that might be the cause, but I took a look at the pump hours that are also logged.

The pump hours do not support the gallons claimed by WP.  They are more in line with the gallons reported by the town.

This should be troubling for WP in that they ought to know how to read the field log and understand the relationship between the flow meters and pump hours.  They designed them.  As near as I can tell, the system would have to pump at significantly more than 1,000 gallons per minute to achieve the flows that they claim.

Flow rates of millions of gallons per day, for several weeks as WP claims, would require much more effluent than the town would generate in that period.  So if there are records of the levels of the Effluent Storage Pond, the claim could be easily tested.  Ten or fifteen million extra gallons would have significantly lowered the level of the ESP. I asked for those records under Right to Know on March 8, and none were provided.  So the town is either illegally withholding them, or they don’t have them.  I go with the former.  In any event, a complete audit of the data that is available should go a long way toward resolving that point.

Yesterday, attorneys for defendants Wright-Pierce filed a response to Wolfeboro’s motion to amend to include allegations of fraud.  Unlike their objection to the initial denied motion, they have included some substantial new elements of their case.

You will recall that the town maintains that the RIB was permitted for 600,000 gallons per day (gpd) average and that average is a monthly average.  Specifically they maintain that if they pumped a total of say 600,000 x 30 = 18,000,000 gallons in a 30 day month, then they would be in compliance, even if that meant pumping 1,800,000 for ten days and nothing for 20.

WP has pointed out that they specified in their Phase 3 hydrogeological report that the RIB should be loaded no more than 600,000 gallons in any given day.  They also show that they clarified that with NH DES prior to the startup and so informed the town.

This blog had been focusing on the high initial flows of around 800,000 gpd for the first several weeks in March.  But in the WP response  (page 7), they cite the field logs maintained by Woodward & Curran, which they say indicate flow rates of well over a million gallons per day, and as high as 1.9 million gpd in the early weeks of April leading up to the first “unexpected event” aka breakout of the side of the hill.  Those flow rates are not reported in the town’s report to NHDES.  Presumably the town has a different interpretation of the field logs.

Moreover, although the town maintains that they operated the RIB in compliance with the permit and within the operating parameters as they understood them, WP is presenting an email from Mr. Ford to WP dated May 7 where he states:

Based on info I have now it appears the Town under my direction overloaded the RIB’s during the period from 3-4 to 3-25, during the spring, with high ground water and snow melt, a most likely bad combination.

A further development is that WP says that they recommended keeping the flow to 600,000 gpd “until after the system has been operating for some time and new data has been collected to confirm the model results”.  That seems to be consistent with the simulation consultant’s [denied] request for additional monitoring wells and his attempts to calibrate the model after startup.

All this in addition to more procedural objections, most notably that it took our attorney’s four months to examine the emails that are the basis for the claim, and that this motion comes five months after the deadline for filing amendments to the complaint.

Our attorney’s have filed a notice that they intend to respond to this response (cha-ching).  It would be refreshing to see them answer the assertions of WP that the Town overloaded and broke the system.  Because it sure looks like WP has their ducks in a row and intend to vigorously defend their reputation.

Our attorneys have resubmitted their amended complaint, near as I can tell unaltered, with an updated memo of law that presumably now addresses what the court said was the applicable law.  We’ll see how this goes.

WP will no doubt respond with pretty much the same objection that they made to the first one.  That the email segments are out of context, that there are other emails indicating that the 600,000 gpd breakout that they discussed was caused by a surveying error that was subsequently corrected, and that the allegations lack specificity.

The court has also granted the five month extension.

Today Wolfeboro, with assent of WP’s attorneys, has filed a motion to extend deadlines for a 5 month delay of everything.  Citing that this trial involves “complex engineering issues” and the claim that there are over 100,000 documents to review.  I guess they got a sample of the kind of defense they are up against and realized they need to step up their game.

So the end of discovery would be moved from June 1 to November 1, the deadline for arbitration from June 1 to November 1, and the trial moved from September 17 to sometime in February 2014.

Naturally the attorneys from both sides have agreed to this extension, after all, they’ll be on the clock for five more months.  At hundreds of dollars per hour, per attorney, I have to wonder how far that half-million bucks is going to go.  We were already budgeted for a total $.7 million for this action.   The deeper in we get, the harder it is to get out.  Maybe our attorneys, realizing that they have a weak case, have decided to try to bleed us till we back out or settle for peanuts.

Our Selectmen should obtain from them an accurate estimate of the total cost of this extension, then either renew to the public their optimism for a productive outcome or cut our loses.  Because right now, it sure looks as if they’ve been blowing smoke.

IMHO, from the beginning this was throwing good money after bad.