Free Motion in Limine - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (E-Filed: October 2, 2006) CAROLE AND ROBERT TESTWUIDE, et. al., Plaintiffs, ) ) ) ) ) ) ) ) ) ) No. 01-201 L Honorable Victor J. Wolski

THE UNITED STATES, Defendant.

____________________________________) DEFENDANT'S MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES AND EXHIBITS Defendant, United States of America, hereby moves to (1) exclude the testimony of Robert J. Smith, lead attorney1 for the United States Department of the Navy ("Navy") in this case, and 12 excessive, redundant, and irrelevant witnesses; (2) exclude plaintiffs' irrelevant exhibits regarding the following: History of jet accidents, constraints on pilot training, previously acquired easements, newspaper articles, sound attenuation and compensation for the loss of use and enjoyment of one's property, and expert reports; and (3) preclude plaintiffs from demonstrating sound and/or video recordings, including but not limited to the Interactive Sound Information System ("ISIS") software at the upcoming trial in this matter. First, as discussed below, plaintiffs' witness list identifies at least 12 witnesses

1

Mr. Smith is expected to have an integral role in the trial, including examining witnesses.

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who will offer either irrelevant or cumulative testimony.2 A list of these 12 witnesses defendant seeks to exclude is attached to this motion as Exhibit A. Plaintiffs also list Robert J. Smith, lead attorney for the Navy in this litigation, as a witness plaintiffs may call to testify about the 2002 revision to the noise contours drafted for the environmental impact statement. Second, plaintiffs' exhibit list includes nearly 75 exhibits that should be excluded because these exhibits are not relevant to the issues of liability or just compensation. Likewise, video recordings and photographs taken by Herk Stokely and Thomas Askins do not involve jet operations at the test plaintiffs' properties and should be stricken from plaintiffs' exhibit list and excluded from the upcoming trial. A list of the exhibits defendant seeks to exclude is attached to this motion as Exhibit B. Third, the ISIS software should be excluded from the upcoming trial because it is not intended to replicate the jet noise produced by NAS Oceana aircraft at any test plaintiff property, and therefore, will be prejudicial and misleading if presented during the trial. As an alternative, the parties and the court could make a site visit to the test plaintiffs' properties when aircraft are operating on the flight paths most relevant to their homes. I. STANDARD OF REVIEW A motion in limine is a recognized method for issuing early rulings on trial matters. Baskett v. United States, 2 Cl.Ct. 356, 359 (1983) (citations omitted). This Court has the power to issue motions in limine under RCFC16. As stated in Baskett: There is no question under [Rule] 16, that this court, as a trial court, has the power to issue pretrial orders simplifying issues for trial. Not only On October 2, 2006, plaintiffs filed their notice of testimony by way of deposition for eleven witnesses. For the first time, plaintiffs identified the portions of the transcripts intended to be submitted in lieu of live testimony. Defendant reserves the right to review the designated testimony and object to the testimony if necessary.
2

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does this court have such power, it has a duty to exercise it in appropriate cases. This power allows the court, inter alia, to define the issues, facts, and theories actually in contention and to weed out extraneous issues. Too, this court also has the authority to issue pretrial rulings concerning the admissibility at trial of proposed testimony and documentary evidence. 2 Cl.Ct. at 359-60 (citing 6 C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE 1525 (1971)); see also INSLAW, Inc. v. United States, 35 Fed. Cl. 295, 302-03 (1996) ("The basic purpose of a motion in limine is to prevent a party before trial from encumbering the record with irrelevant, immaterial or cumulative matters."). Furthermore, motions in limine promote "trial efficiency and promot[e] improved accuracy of evidentiary determinations by virtue of the more thorough briefing and argument of the issues that are possible prior to the crush of trial." Intern'l Graphics, Div. of Moore Bus. Forms, Inc. v. United States, 5 Cl. Ct. 100, 104 (1984) (quoting Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1140-41 (E.D. Pa. 1980)). II. DISCUSSION A. Rules 401 and 403 of the Federal Rules of Evidence require that plaintiffs' irrelevant and redundant witnesses be excluded from the upcoming trial

Plaintiffs' witness list includes 12 fact witnesses, other than the 12 test plaintiffs, who own property in the community surrounding Naval Air Station ("NAS") Oceana. At least three of the 12 additional fact witnesses are plaintiffs in this consolidated action, but were not selected as test plaintiffs for the upcoming trial. Plaintiffs' witness list provided the same comment for 10 of the 12 additional witnesses and broadly described their testimony as "noise impact on home and community." See Plts. Trial Witness List. The description for Robert Goodwin is also "noise impact on home and community" and adds

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that he will testify to "NATOPS experience." Plts. Trial Witness List, p. 1. Plaintiffs' witness list states Louis Figari will testify to "aircraft noise around his property and Virginia Beach." Plts. Trial Witness List, p. 1. The testimony of these 12 witnesses must be excluded from the upcoming trial because these witnesses cannot offer any relevant testimony. A basic evidentiary tenet is the requirement for relevancy: "[E]vidence which is not relevant is not admissible." Fed. R. Evid. 403. To be relevant evidence must tend to make a consequential fact more or less probable. See Fed. R. Evid. 401; see also Magnivision, Inc. v. Bonneau, Co., 115 F.3d 956, 961 (Fed. Cir. 1997). Here, the ultimate issues at trial are whether NAS Oceana aircraft have directly overflown the test plaintiff properties at low altitudes to the point of substantially interfering with the use and enjoyment of those properties, and have diminished the value of the test plaintiff properties. These 12 witnesses cannot offer testimony regarding either issue. Indeed, many of the witnesses admitted during their depositions that they were completely unfamiliar with the test plaintiffs or their properties. See e.g. Exhibit C, Deposition Testimony of Karen Lynn Green and Deposition Testimony of Charles Nash. Therefore, these witnesses cannot have any personal knowledge regarding jet operations at the test plaintiffs' properties, or potential just compensation. Accordingly, these witnesses must be excluded from the upcoming trial because their testimony cannot "tend to make a consequential fact more or less probable." Even assuming any of these 12 witnesses have knowledge of jet operations at the test plaintiffs' properties, their testimony would be unnecessary, redundant, and excessive of the test plaintiffs' testimony. Under FRE 403, evidence that is otherwise relevant

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"may be excluded . . . by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. Here, plaintiffs' description of the testimony for the witnesses at issue is nearly identical. The repetitive and cumulative testimony of these witnesses will waste the parties' time and resources and hinder judicial economy. Therefore, these witnesses should be excluded from the upcoming trial. B. Federal case law prohibits plaintiffs from calling Robert J. Smith as a witness at trial

Plaintiffs have no reasonable basis to call Robert J. Smith, the lead Department of the Navy attorney handling this case, as a witness at the upcoming trial in this matter to testify regarding "the 2002 revision to the noise contours drafted for the environmental impact statement." Plts. Witness List, p. 4. If plaintiffs were seeking to depose Mr. Smith, plaintiffs would be required to satisfy three criteria: that (1) "no other means exist to obtain the information other than to depose" the attorney; (2) "the information sought is relevant and non-privileged; and (3) "the information is crucial to the preparation" of the case. Sparton Corp. v. United States, 44 Fed.Cl. 557, 563 (1999). Plaintiffs in the present case seek the extraordinary measure of having one of the government attorneys trying this case--the lead Navy attorney who has been representing the Navy in this lawsuit since its inception--to testify at trial. At a minimum, therefore, plaintiffs should be required to satisfy the above criteria to demonstrate that the Court should not strike Robert J. Smith from their witness list and exclude his testimony at trial. Plaintiffs seek the testimony of Mr. Smith as a witness to testify on a matter for which plaintiffs have conducted numerous depositions. Moreover, at least six of these deponents (Capt (ret) Mark Benson, Capt Mark Clemente, Micah Downing, Geral Long, Commander Todd Pollard, and Commander James Webb)are listed on plaintiffs' witness

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list. Accordingly, plaintiffs can hardly claim that the testimony they seek from Robert J. Smith cannot be obtained through the testimony of one of these other witnesses. Importantly, even if plaintiffs could establish Mr. Smith's testimony is relevant, not privileged, and crucial to their case, Mr. Smith's testimony would be redundant and cumulative of the testimony of the other witnesses. Finally, plaintiffs failed to comply with 32 C.F.R. Part 725, also known as the Touhy Regulation, which governs the release of official information by Navy personnel in litigation. See 32 C.F.R. Part 725. Plaintiffs were informed on August 18, 2006, that, to evaluate their request to seek Mr. Smith's testimony at trial, plaintiffs must comply with the regulation by providing defendant with a formal request for Mr. Smith's trial and possible deposition testimony. See Exhibit D. Specifically, the regulation requires a party must provide a description of the testimony sought and a statement of relevance. See Exhibit D. Plaintiffs failed to provide defendant any of the required information. For these reasons, Robert Smith must be stricken from plaintiffs' witness list and his testimony must be excluded at trial. C. Over 50 of plaintiffs' exhibits must be excluded because they do not contain any information relevant to the issues at trial Like the witness testimony discussed above, the following categories of plaintiffs' exhibits must be excluded from the upcoming trial because they are not relevant to plaintiffs' takings claim or the issue of just compensation: History of jet accidents, constraints on pilot training, previously acquired easements, newspaper articles, sound attenuation and compensation for the loss of use and enjoyment of one's property, and expert reports. As noted, the ultimate issues at trial are whether NAS Oceana jets caused a taking of plaintiffs' property, and if so, the amount of compensation

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due. These categories of exhibits do not relate to liability or just compensation. Specifically, the exhibits contain no relevant information regarding overflights at the test plaintiffs' properties. For example, PT 536 titled "[M]emo from LCDR Matt Cartier to Daniel Cecchini regarding history of Class A mishaps in and around NAS Oceana" and PT 580 titled, "[S]tatement of Admiral William Fallon before the House Committee on Government Reform on Constraints on Military Training," contain no information relevant to overflights at the test plaintiffs' properties or market values of the test plaintiffs' properties. Likewise, documents referencing defendant's previous acquisition of easements near other military bases and noise complaints from property owners other than the test plaintiffs are not relevant to whether a taking occurred at the test plaintiffs' properties. Moreover, the newspaper articles listed in plaintiffs' exhibit list are clearly hearsay and should be excluded on this ground. In addition, videos and photographs taken by Herk Stokely and Thomas Askins were not taken at (or even near) the test plaintiffs' properties. Therefore, the videos are not relevant to overflights at the test plaintiffs' properties and must be excluded. Exhibits and testimony regarding possible sound attenuation or mitigation measures (e.g., additional insulation, upgraded windows) and compensation specifically for the loss of use and enjoyment of one's property (as opposed to impact on fair market value) are also not relevant. These types of damages are not valid forms of compensation under the Fifth Amendment and must be excluded. Here, plaintiffs seek just compensation under the Fifth Amendment for the property interest that they allege was taken by the United States on July 1, 1999. The meaning of just compensation in this case is a matter of fundamental constitutional interpretation, and is resolved with

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reference to federal law. See United States v. Miller, 317 U.S. 369, 380 (1943), reh'g denied, 318 U.S. 798 (1943). As part of their case-in-chief regarding liability, plaintiffs must prove that there was a significant diminution in property value. See Deft. Pretrial Brief, p. 40?. This factor is measured as the difference between the fair market property value before the taking and after the taking. Aaron v. United States, 340 F.2d 655, 65960 (Ct. Cl. 1964). Similarly, it is well-established that the measure of just compensation in the case of a taking of a portion of a parcel of real property is the difference in the fair market value of the property before and after the taking. See United States v. Virginia Elec. Co., 365 U.S. 624, 632 (1961); Cloverport Sand & Gravel Co., Inc. v. United States, 6 Cl. Ct. 178, 188 (1984). Fair market value is defined as: . . . the amount in cash, or on terms reasonably equivalent to cash, for which in all probability the property would be sold by a knowledgeable owner willing but not obligated to sell to a knowledgeable purchaser who desired but is not obligated to buy. Yellow Book at 29-34 (Def.'s Tr. Ex. 19); accord Miller, 317 U.S. at 374; Snowbank Enter., Inc. v. United States, 6 Cl. Ct. 476, 484 (1984). Sound attenuation or mitigation costs are clearly not proper components of this calculation and are not relevant to the fair market value inquiry. At most, plaintiffs' demands for these types of damages might arguably be sought under a tort theory of recovery, which plaintiff has not asserted and over which this Court has no jurisdiction. See 28 U.S.C. §1491 (1988); see also Deft. Pretrial Brief, p. 40? (or MSJ). Accordingly, exhibits and testimony regarding sound attenuation or mitigation and loss of use and enjoyment of property must be excluded. Plaintiffs have also listed exhibits relating to their expert witnesses' testimony. Defendant has proposed on multiple occasions that the parties stipulate that each expert report be moved into evidence without objection, unless the opposing party has moved to

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exclude an expert report based on the expert's qualification or Daubert, so as to expedite the trial presentation and assist the Court in evaluating the experts' opinions during deliberations. Plaintiffs refuse to enter into this type of agreement.3 Six of these exhibits ­ PT 805-806, PT 829, PT 551, and PT 853-854 -- are comprised of Dr. Jon Nelson's expert reports and supporting documents. On September 20, 2006, defendant moved to exclude Dr. Nelson's expert reports based on FRE 702 and Daubert. If this motion succeeds, the remaining three exhibits (the exhibits to Dr. Nelson's reports) should be excluded. D. ISIS does not accurately replicate the noise environment at test plaintiffs' properties and must be excluded

Plaintiffs' exhibit, PT842, "[A]ffidavit signed by David Dubbink regarding the Interactive Sound Information System," should be stricken, and plaintiffs should not be allowed to demonstrate the Interactive Sound Information System referenced in PT 842. The ISIS system utilizes digital sound recordings, graphics, and equipment to demonstrate different types of noise. While the system may be useful for general demonstrative purposes as a community educational tool, the ISIS system was not intended, nor does it accurately replicate the noise caused by NAS Oceana jets at any particular test plaintiff property, and is therefore irrelevant to the property-specific liability determination required in cases like this. Therefore, an ISIS demonstration would be misleading and its prejudicial effect would substantially outweigh any probative value. See Fed. R. Evid. 403 (evidence that is otherwise relevant "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the [trier of fact] . . ."). Moreover, as Plaintiffs stated intent to object to defendant's expert reports on hearsay grounds has forced defendant to object to plaintiffs' expert reports as well.
3

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stated above, a better alternative exists. Accordingly, plaintiffs should not be allowed to demonstrate the ISIS system at trial. Instead, the parties and the Court could make a site visit to the test plaintiffs' properties when aircraft are operating on the flight paths most relevant to their homes. CONCLUSION For the foregoing reasons, defendant respectfully requests the Court exclude the witnesses listed in Exhibit A, exclude the testimony of Robert Smith, exclude the exhibits listed in Exhibit B from the upcoming trial, and preclude plaintiffs from demonstrating sound and/or video recordings, including but not limited to the ISIS system, at trial. Dated: October 2, 2006 Respectfully Submitted,

s//Steven D. Bryant STEVEN D. BRYANT KELLE S. ACOCK United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 Email: [email protected] Voice: (202) 305-0424 Fax: (202) 305-0267 Of Counsel: Robert J. Smith Mary Raivel Navy Litigation Office Washington Navy Yard, D.C. 20374 CDR Dominick Yacono JAGC, USN Commander Navy region Mid-Atlantic, Code (00LE) Norfolk, VA 23511-2737

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EXHIBIT A

Fact Witnesses 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Askins Jr., Thomas H. Darling, Nancy Figari, Louis Gilbert, William Edward Goodwin, Robert Green, Karen Lynn Gregory, James K. Helvie, Carl Keel, Randy McCreary, Jeffrey Nash, Charles K Stokely, Herbert A.

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Exhibits from Plaintiffs' Exhibit List subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits

Trialx# Begdoc#

Enddoc#

Exh#

Docdate

PT524 AR-035758-035759

PX051

Trdesc Email exchange between Alan Zusman and Jeffrey Borowy regarding sound attenuation of homes surrounding NAS 7/11/1997 Oceana Memo from LCDR Matt Cartier to Daniel Cecchini regarding history of Class A mishaps in 8/5/1997 and around NAS Oceana Email from Alan Zusman to Joseph Czech regarding sound attenuation of homes 1/29/1998 surrounding NAS Oceana Email exchanges between Alan Zusman, Jeffrey Borowy and Duncan Holaday, et al. 1/29/1998 regarding sound attenuation Point Paper by Borowy regarding aircraft noise policy and sound attenuation costs Memo from Jeffery Borrowy to Admiral Lou Smith regarding sound attenuation costs in areas surrounding NAS Oceana All Units - All Inclusive All Units - Increase Due to Relocation of F/A-18s Handwritten formula by Jon Nelson used to calculate estimated NDI Expert Report of Alexander Salzberg and Dennis Gruelle

Objection

Relevance

PT536 AR-042018-042019 AR-042018-042020

Relevance

PT538 AR-042530-042531

Relevance

PT540 AR-043806-043806

PX130

Relevance

PT543 AR-050501-050501

1/28/1998

Relevance

PT544 AR-050507-050507 PT545 AR-050508-050508 PT546 AR-050509-050509

PX052A PX052B PX052C

2/13/1998 2/3/1998 2/3/1998

Relevance Relevance Relevance

PT551 DX119 PT552 DX132

DX119 DX132

DX119 DX132

12/21/2005 00/00/2005

Subject to Stipulation (Daubert Challenge) Subject to Stipulation

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Exhibits from Plaintiffs' Exhibit List subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits

PT553 DX134

DX134

DX134

PT555 DX149

DX149

DX149

PT556 DX150

DX150

DX150

The Repeat Sales 00/00/0000 Spreadsheet Rebuttal - DRAFT Report by Dr. Noral Stewart entitled, "A Review of Report of Sanford Fidell in Testwuide et al. v. United States of America in the United States Federal 1/5/2005 Court of Claims" Rebuttal - A Review of Report of Sanford Fidell by Noral D. 12/00/2005 Stewart Memo from Tom Horsch to Monica Shephard regarding noise mitigation and attached Spreadsheet showing 12/4/1994 operations from 1980 to 1993 Letter from Alan Zusman to Virginia Beach City Public Schools Representative regarding sound level reduction and attached Wyle 11/25/1997 memo Statement of Admiral William Fallon before the House Committee on Government Reform on Constraints on 5/9/2001 Military Training Rebuttal - Wyle Guidelines for Sound Insulation of Residences Exposed to 11/15/1989 Aircraft Operations

Subject to Stipulation

Subject to Stipulation

Subject to Stipulation

PT575 HEBERT024

PX036

Relevance

PT579 NEP000703

NEP000706

Relevance

PT580 NEP000957

NEP000968

Relevance

PT610 OCE009383

OCE009609

Relevance

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Exhibits from Plaintiffs' Exhibit List subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits

PT635 OCE019446

OCE019447

Correspondence exchange between Capt. Zobel and Virginia Beach resident Laureen Docteur regarding noise complaint following move into condominium near 11/30/1999 Lynnhaven Mall Letters from various Virginia Beach and Chesapeake 12/13/1999 residents complaining of noise Wyle Report 04-03 - Pre-Final Guidelines for Sound Insulation of Residences 02/00/2005 Exposed to Aircraft Operations Memo from Jeffery Borowy to N44 regarding Oceana Sound Attenuation and Memo on Aircraft Noise Policy for the 02/00/1998 FAA and the Navy. Rebuttal - Various Newspaper 00/00/0000 Articles Expert Report by Jon P. Nelson - Effects of Aircraft Noise on Residential Property Values: NAS Oceana and 9/26/2005 NALF Fentress Report by Jon P. Nelson Plaintiffs' Rebuttal to the Expert Report of Dr. David Dale-Johnson (Analysis of the Impact of the Realignment on 12/12/2005 House Values)

Hearsay & Relevance

PT636 OCE019478

OCE019485

Hearsay & Relevance

PT735 OCE224799

OCE224935

Relevance

PT803 PClassX002 PT804 PClassX013

PClassX002 PClassX013

Relevance Hearsay

PT805 PL-EXPT000001

PL-EXPT000044

DX116

Subject to Stipulation (Daubert Challenge)

PT806 PL-EXPT000045

PL-EXPT000072

DX120

Subject to Stipulation (Daubert Challenge)

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Exhibits from Plaintiffs' Exhibit List subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits

PT818 PL-EXPT000249

PL-EXPT000266

DX151

PT820 PL-EXPT000284

PL-EXPT000287

PT829 PL-INV000447

PL-INV000474

Rebuttal - Report by Noral D. Stewart - A Review of Report of Sanford Fidell in Testwuide et al. v. United States of 2/21/2006 America Rebuttal - Dr. Noral Stewart letter to Jack Ferrebee regarding improvement of 7/22/2005 sound insulation in homes META-ANALYSIS OF AIRPORT NOISE AND HEDONIC PROPERTY VALUES: PROBLEMS AND PROSPECTS BY JON P. 07/00/2003 NELSON Graphic and Map by the Virginian Pilot entitled, "Train the Way You Fight," regarding problems with training at 08/00/2005 Oceana and Fentress Newspaper Article by Jon W. Glass entitled, "Jet-noise zone 10/13/2005 restrictions develop." Rebuttal - Opinion Editorial by Anthony J. Principi, "Cecil's Accident Zones have Fewer 10/21/2005 Homes than Oceana's." Opinion Editorial by Admiral Stephen Turcotte entitled "Navy Has a Right and Responsibility to Weigh in on 12/4/2003 Development Near Oceana."

Subject to Stipulation

Hearsay & Relevance

Subject to Stipulation

PT833 PL-INV001651

PL-INV001651

Hearsay

PT835 PL-INV003077

PL-INV003079

Hearsay & Relevance

PT836 PL-INV003148

PL-INV003148

Hearsay & Relevance

PT839 PL-INV005701

PL-INV005702

Hearsay

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Exhibits from Plaintiffs' Exhibit List subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits

PT842 PL-INV007661

PL-INV007661

9/30/2005

PT843 PL-INV010352

PL-INV010353

12/26/2005

PT844 PL-INV010355 PT847 PL-INV011688 PT848 PL-INV011689 PT849 PL-INV011694 PT850 PL-INV011695 PT851 PL-INV011706

PL-INV010500 PL-INV011688 PL-INV011693 PL-INV011694 PL-INV011695 PL-INV011706

04/00/2005 05/00/2004 00/00/2004 3/10/2005 11/27/2000 00/00/2001

Affidavit signed by David Dubbink regarding the Interactive Sound Information System Virginian Pilot Article "The jet engine's roar? Get used to it from Super Hornet." Rebuttal - Guidelines for Sound Insulation of Residences Exposed to Aircraft Operations prepared by Wyle Research and Consulting for the Navy. Overflight video taken by Janet Holloway Photos of overflights by Janet Holloway Overflight video taken by Herk Stokely Overflight video taken by Thomas Askins Overflight video taken by Herk Stokely

Hearsay & Relevance

Hearsay & Relevance

Relevance Relevance & Document not in Def. Posession Relevance & Document not in Def. Posession Relevance & Document not in Def. Posession Relevance & Document not in Def. Posession Relevance & Document not in Def. Posession

PT853 PL100492 PT854 PL100558

PL100538 PL100564

PT856 PL102662

PL102761

Rebuttal - Expert Report of Dr. Jon Nelson entitled, "Naval Air Station (NAS) Oceana and Naval Auxiliary Landing Field 3/7/2001 (NALF) Fentress." Curriculum Vitae of Dr. Jon 09/00/2001 Nelson. Rebuttal - Report by United States FAA entitled, "Aviation 03/00/1985 Noise Effects"

Subject to Stipulation Subject to Stipulation (Daubert Challenge)

Relevance

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Exhibits from Plaintiffs' Exhibit List subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits

PT863 PSJX049

PSJX049

Declaration of Dr. Noral Stewart in Testwuide et al. v. the United States, Case No. 5/23/2006 01-201L. Rebuttal - Rebuttal Declaration 4/22/2002 by Dr. Jon P. Nelson

Hearsay

PT870 PX152

PX152

PX152

Subject to Stipulation

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Plaintiffs' Proposed JXs subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits AICUZ map (from Robert Goodwin 00/00/1999 deposition) 2005 JLUS AICUZ Planning Map with markings by Eileen May and Louis 00/00/2005 Figari. Nelson payment re: Naval Air Station 2/9/2001 Oceana Nelson payment re: Naval Air Station 3/22/2001 Oceana Nelson payment re: Naval Air Station 1/16/2002 Oceana Relevance and hearsay

JX016

DX128

OCE2691 59 DX128

DX128

JX017

DX145

JX032

DX420

OCE2691 60 DX145 DX145 OCE2234 30 OCE2234 32 PL100376 PL100378 OCE2234 33 - 435 PL100379 PL100381 OCE2234 36 - 438 PL100382 PL100384 OCE2234 39 - 441 PL100385 PL100387 OCE2234 42 - 447 PL100388 PL100393

Relevance and hearsay Hearsay, authenticit y Hearsay, authenticit y Hearsay, authenticit y Hearsay, authenticit y Hearsay, authenticit y

JX033

DX421

JX034

DX422

JX035

JX036

JX037

4/11/2002 Nelson payment Nelson Invoice RE: NAS Oceana class 4/4/2002 action Nelson to Kieron re: Meta-Analysis Results em w/ attached tables and 00/00/0000 reference list

DX423

DX424

DX436

JX038

00/00/0000Nelson Profile Nelson Requested 9/26/2000 Studies Towson University Center of Geographic 00/00/0000 Information Sciences Biography of Dr. 00/00/0000 John M. Morgan, III Resume of John M. 00/00/0000 Morgan, III, Ph.D. Dennis Gruelle's data (spreadsheets) relied on for his report

DX439

JX039

DX440

Hearsay, OCE2236 authenticit 19 - 624 PL100565 PL100570 y Hearsay, OCE2236 authenticit 49 - 699 PL100595 PL100645 y Hearsay, OCE2237 authenticit 00 - 704 PL100646 PL100650 y

JX040

DX454

JX041

JX042

Hearsay, OCE2240 authenticit 48 - 061 PL100994 PL101007 y Hearsay, authenticit PL101008 PL101008 y Hearsay, authenticit PL101009 PL101013 y

JX043

DX471

DX471

Hearsay

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Plaintiffs' Proposed JXs subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits Hearsay, OCE2390 OCE2390 OCE2390 authenticit 21 - 065 21 65 y

JX046

8/12/2005

JX064

9/29/2005

JX114

8/26/2005

JX115

8/26/2005

JX116

8/26/2005

JX117

8/26/2005

Nelson's Draft Report Appraisal Report of Test Case Plaintiffs by Alexander Salzberg and Dennis Gruelle Final Appraisal of 1805 Loganberry Court (James and Virgie Riddick) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 2004 Brickell Court (Harold and Elaine Levenson) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 925 Lamplight Lane (Kenneth and Tammy Hill) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 1856 Pathfinder Drive (Sean and Graciela Ryan) as of 1999 by Alexander Salzberg and Dennis Gruelle

DX665

PT550

DX110

DX110

Hearsay

PT807

PLPLHearsay, EXPT000 EXPT000 authenticit 073 089 y

PT808

PLPLHearsay, EXPT000 EXPT000 authenticit 090 104 y

PT809

PLPLHearsay, EXPT000 EXPT000 authenticit 105 124 y

PT810

PLPLHearsay, EXPT000 EXPT000 authenticit 125 140 y

JX118

JX119

Final Appraisal of 3209 Chicory Court (Michael and Diane Leary) as of 1999 by Alexander Salzberg 8/26/2005 and Dennis Gruelle PT811 Final Appraisal of 305 Corvette Lane (Herbert and Betty Van Nostrand) as of 1999 by Alexander Salzberg and Dennis PT812 8/26/2005 Gruelle

PLPLHearsay, EXPT000 EXPT000 authenticit 141 155 y

PLPLHearsay, EXPT000 EXPT000 authenticit 156 170 y

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Plaintiffs' Proposed JXs subject to Defendant's Motion in Limine to Exclude Certain Witnesses and Exhibits Final Appraisal of 409 Pallets Road (William and Betty Capps) as of 1999 by Alexander Salzberg and Dennis PT813 8/26/2005 Gruelle Final Appraisal of 1301 Brant Road (Sara Lynch Hoag) as of 1999 by Alexander Salzberg 8/26/2005 and Dennis Gruelle PT814 Final Appraisal of 912 Carolina Avenue (Theodore and Sue Dingle) as of 1999 by Alexander Salzberg and Dennis PT815 8/26/2005 Gruelle Final Appraisal of 2244 Windy Pines Bend (Eddie and Elizabeth Waterman) as of 1999 by Alexander Salzberg 8/26/2005 and Dennis Gruelle PT816 Final Appraisal of 2709 E Kings Road (Caroll Lindsay) as of 1999 by Alexander Salzberg and Dennis PT817 8/26/2005 Gruelle Final Appraisal of 620 Little Neck Road (Eileen May) as of 1999 by Alexander Salzberg and Dennis PT819 2/1/2006 Gruelle Resume of 9/29/2005 Alexander Salzberg

JX120

PLPLHearsay, EXPT000 EXPT000 authenticit 171 185 y

JX121

PLPLHearsay, EXPT000 EXPT000 authenticit 186 200 y

JX122

PLPLHearsay, EXPT000 EXPT000 authenticit 201 216 y

JX123

PLPLHearsay, EXPT000 EXPT000 authenticit 217 233 y

JX124

PLPLHearsay, EXPT000 EXPT000 authenticit 234 248 y

JX125

JX126

PT821

JX127

GIS Maps

PT823

PLEXPT000 267 PLEXPT000 321 PLINV01171 1

PLEXPT000 283 PLEXPT000 322 PLINV01171 1

Hearsay, authenticit y Hearsay, authenticit y Hearsay, authenticit y

Case 1:01-cv-00201-VJW
I

Document 217-5

Filed 10/02/2006

Page 1 of 6

i

1
I - :",/

IN THE UNITED STATES COURT OF FEDERA CLAIMS

2 3

~''---:.f~:.

CAROL AND ROBERT TESTWUIDE,
4

et al.,

)
)

5
6 7
8

Plaintiffs,
v.
THE UNITED STATES OF AMRICA,

) )

)
) ) )
)

NO.

01-201L

Judge Victor

J. Wolski

Defendant.

)

9

10 11

DEPOSITION UPON ORA EXAMINATION:
12

OF KAEN LYN GREEN TAKN ON BEHAF OF THE DEFENDANT

13
~"

,¡
14

Virginia Beach, Virginia

15
January 12, 2006

16
,~

17

" '-", "d "" ''\ 1 \ _1
, ~,~ ---;,~- ~.:\. -.) \~;-) J~1"'. 'a,g:" ~i~ '/.1

. .. "~"

18

,t
~'..-.. j¡r-',

19

Appearances:
..'

20
21
, 22

SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P. C. By: CHALES LUSTIG, ESQUIRE
Counsel 'for the Plaintiffs

23 24
.~.~~

U. S. DEPARTMENT OF JUSTICE By: KELLE S. ACOCK, ESQUIRE DEPARTMENT OF THE NAVY

COMMDER NAVY REGION ATLATIC
; By: DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

25

ZAHN COURT REPORTING
TeL. (757) 627-6554 Fax (757) 625-7077

ó:

www.zahncourtreporting.com

l
1
I

Case 1:01-cv-00201-VJW

Document 217-5

Filed 10/02/2006

Page 2 of 6

28

you could just let me know if you know someone on the list
of names.

2
3

Do you know Theodore Dingle?

r
4

A.
Q.

No.
Hal and Elaine Levenson?

5
6 7
8

A.
Q.

No.
Carroll Lindsay?

A.
Q.

No.
Herbert and Betty Van Nostrand?

9

10 11
12 13 14

A.
Q.

No.
James and Virginia Riddick?

A.
Q.

No.
Eddie and Elizabeth Waterman?

A.
Q.

No.
Sara Haag?
r

15

16
17
18

A.
Q.

No.
Or Sara Lynch?

A.
Q.

No.
William and Betty Capps?

.L

;J
~..-i.Ä"

19

"

20
21

- A.
Q.

No.
Eileen May?

22

A.
Q.

No.
Kenneth and Tammy Hill?

23
24

A.
Q.

;No.
Michael and Diane Leary?

25

ZAHN COURT REPORTING TeL. (757) 627-6554 Fax (757) 625-7077

-

ww.zahncourtreporting.com

.., '. "-....~.'..' .~"".

Case 1:01-cv-00201-VJW
1

Document 217-5

Filed 10/02/2006

Page 3 of 6

A.
Q.

29

No.
Sean and Graciela Ryan?

2
3
4

A.
Q.

No.
Janet Holloway?

5 6
7 8

A.
Q.

No.
"When is the first time you recall wi tnessingan
.~, "..

OVerflight at your property?

A.
Q.

I saw them before we moved on the property.

9

Before you purchased the property?

10
11

A.
Q.
that in -- I think you

Yes.
And your first experience, when was tha~?
Was

12
13
14

may have already said.
It was probably 184.

182, i 84?
L ,', ... " .

A.
Q.

And what did you observe?
Jets flying very low over the property.

15

A.
Q.

16
17 "
18

How low would you estimate the jet flew?
Three to five hundred feet.

A.
Q.

And how do you make that estimation?
Because my husband has told me.
You know,

, -,"',

_.-.-!-d: ..

j ¡¡/

19

A.

20
21

it i ~ hard for me to estimate distances.

I ,~:..~. l

I'm not good at

that.

But, you know, my husband is good at that because

22

he's in the trades, he knows measurements, and he has told

23
24

me, you know, the approximate distance.
Q.

How 'does he estimate the distance?

25

A.

I guess because many, many years in the trades
o

ZAHN COURT REPORTING TeL. (757) 627-6554 Fax (757) 625-7077

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LJ

I
I';f, :.~""'~!

Case 1:01-cv-00201-VJW
1

Document 217-5

Filed 10/02/2006

Page 4 of 6

i

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

I
I
I
I
I
I
I

r.

2 3

CAROL AND ROBERT TESTWUIDE,
4

et al.,
v.

) )

5
6 7
8

Plaintiffs,
THE UNITED STATES OF AMERICA,

)

)
)

. )
) )

NO. 01-201L Judge Victor J. Wolski

Defendant.

)

)

9

10
11

12 13

DEPOSITION UPON ORA EXAMINATION OF CHALES K. NASH TAKEN ON BEHAF OF THE DEFENDANT

I ~
I

14

15 16
I

Virginia Beach, Virginia
January 13, 2006

17
18
.,, .... Ä - "\ ~. \ ~.,'

~; a ~., !,J~ ~ ~ ..1.. h.o

19

Appearances:
SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P. C. By: CHALES LUSTIG, ESQUIRE
Counsel for the Plaintiffs'

20
21

22

23
24
..,. .~

U. S. DEPARTMENT OF JUSTICE By: KELLE S. ACOCK, ESQUIRE

And
DEPARTMENT OF THE NAVY COMMDER NAVY REGION ATLANTIC By: DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

25

Tel. (757) 627- 6554 Fax (757) 625-7077

ZAHN COURT REPORTING

-

ww.zahncourtreporting.com

Case 1:01-cv-00201-VJW
1

Document 217-5

Filed 10/02/2006

Page 5 of 6

29

entitled to.
MS. ACOCK:

2
3 4

Wha t did you do to prepare for the

deposition today?

And you don i t need to talk about any

discussions that you had with Mr. Lustig or any other

5
6
7 8

attorneys.
A.
Q.

That i S about it.

Nothing, really.

Did you read any documents or any type of

information before you came in today to prepare?

9

A.
Q.

No.

I think my answers testify to that.

10
11 12 13

Do you know -- do you know Theodore or Ted

Dingle?
A.
Q.

No.
Do you know Hal ahd Elaine Levenson~

14 15 16
17 18

A.
Q.

No.

I don i t think so.

Does that name sound familiar?
Yes, for some reason.

A.
Q.

I don i t know why.

Do you know Carroll Lindsay?

A.
Q.

No.
Herbert or Betty Van Nostrand?

19

20
21 22 23

A.
Q.

No.

James or Virginia Riddick? .
No.
Eddie or Elizabeth Waterman?

A.
Q.

24

A.
Q.

No.
Sara Lynch or Sara Haag?
-

25

ZAHN COURT REPORTING TeL. (757) 627-6554 Fax (757) 625-7077

ww.zahncourtreporting.com

I
1

Case 1:01-cv-00201-VJW

Document 217-5

Filed 10/02/2006

Page 6 of 6

30

A.
Q.

No.
William or Betty Capps?

I

2 3

A.
Q.

I
4

No.
Eileen May?

l
I

5
6

A.
Q.

No.
Kenneth or Tammy Hill?

7

A.
Q.

No.
Michael or Diane Leary?

i

8

9
~

A.
Q.

No.
Sean or Graciela Ryan?

10

i

11
12

A.
Q.

No.
Are you a member of Concerned Citizens Against

f

13
r

Jet Noise, or CCAJN?

14

A.
Q.

Yes.
How long have you been a member of CCAJN?
Since it started.

15
r

16
i

A.
Q.

17

Were you a founding member?

18
r

A.
Q.

No.
Do you hold any positions in CCAJN?

19

20
21

A.
Q.

No.
Why did you join CCAJN?

22 23
24

A.
Q.

Because I'm concerned about jet noise.

What is your understanding of the goal of CCAJN

or the mission of the group?

25

A.

To come up with some solution that gives the City

Tel. (757) 627-6554 Fax (757) 625~7077 www.zahncourtreporting.com

ZAHN COURT REPORTING

o

Case 1:01-cv-00201-VJW

Document 217-6

Filed 10/02/2006

Page 1 of 3

U.S. Department of Justice

Environment and Natural Resources Division
SDB

90-1-23-10297
Natural Resources Section

Telephone (202) 305-0424

P. O. Box 663

Facsimile (202) 305-0267

Washington, DC 20044-0663

August 18, 2006

Via E-mail
Kieran F. Quinn, Esquire Quinn, Gordon & Wolf 102 West Pennsylvania Avenue Suite 402 Baltimore, Maryland 21204
Re:

Testwuide v. United States, 01-201

Dear Kieran:

This responds to your August 16,2006 letter, and addresses the issues raised in the same paragraph numbers in your letter:
1. As indicated in my earlier e-mail, Mr.

Zusman is available to resume his deposition on

September 6, 2006 in your offce. Please let me know if you have a conflct with that date. The
Court's order was limited to reopening Mr. Zusman's deposition, not Mr. Czech. We object to

your request to reopen Mr. Czech's deposition.

2. I am shocked by your request to add Mr. Smith, the lead agency litigation counsel in this case 2001, to your witness list (shortly before trial to boot), or for you to since it was fied in April suggest that you may wish to depose him. Mr. Smith has been representing the Department of your case. I trust that it comes as no surprise to you that your the Navy prior to the inception of belated effort to seek his trial testimony on an as yet unidentified subject presents significant issues. Clearly, seeking testimony from an attorney handling a case is a serious matter which requires further evaluation before we can decide whether to seek a protective order from the Court. At this point, I do not have sufficient information from you to decide whether or not Mr. Smith possesses any unprivileged factual information that you have not already obtained, or cannot obtain, from another witness. We have not previously insisted that you comply with the requirements of 32 CFR Part 725, which governs release of offcial information by Department of the Navy personnel in litigation, because it was reasonably clear in each case that the witness

Case 1:01-cv-00201-VJW

Document 217-6

Filed 10/02/2006

Page 2 of 3

you sought testimony from might possess non-privileged information relevant to your claims, or at least information reasonably calculated to lead to such information. Mr. Smith, however, presents a different circumstance. Mr. Smith's sole involvement in matters related to your

the Navy. In order to evaluate your request to seek his testimony at trial, you must comply with 32 CFR Part 725 by
claims has been in his role as an attorney representing the Department of

providing me with a formal request for Mr. Smith's trial and possible deposition testimony containing the information set forth in the regulation. The information we require includes, but is not limited to, a description, in as much detail as possible, of the testimony you seek and a statement of the relevance of that testimony to your claims. I have enclosed a copy of this regulation to assist you in preparing the request. We of course reserve the right to seek a protective order or other relief from the court, if necessary.

3. The privilege log for OCE240293-294 is attached. 4. I am concerned that your estimated 8 days for plaintiffs' case-in-chief occupies too large a the 15 days allotted for triaL. That would only leave 7 days for defendant's case and any share of rebuttal evidence you might want to present. As I mentioned during the meeting of counsel, we should explore ways to make the trial presentation more effcient. Fact witnesses would present such an opportunity. We intend to move to strike certain of your witnesses, which, if successful,
would assist matters. Aside from that, however, I renew my proposal that we stipulate to

admitting deposition transcript testimony for some witnesses to move things along. Also, you indicated that you were unsure if the estimated 8 days would include our direct examination of dual witnesses, specifically those non-local witnesses that both sides intend to call in their respective cases-in-chief. As a reminder regarding dual witnesses, we proposed an out of order non-local witnesses for effciency and to minimize travel costs. Specifically, we examination of
would conduct our direct examination of

these witnesses during your case-in-chief. Please

advise if the 8-day estimate includes dual witnesses.

5. If you are wiling to agree to the dual witness procedure we proposed then we may be willing to pay for the travel expenses of these witnesses within reason. Such an agreement would require further discussion and agreement, such as limiting the number of out town witnesses on a particular subject (e.g. only one ATAC witness). You mentioned reimbursing the government non-local Navy witnesses. For clarification, the government is not for travel expenses of responsible, nor willng, to front the travel expenses of witnesses that we do not intend to calL.
6. I am perplexed at your intent to revisit the matters you persist in incorrectly describing as the "Mystery Project." The Court's order explicitly recognizes that those matters were privileged.

- 2-

Case 1:01-cv-00201-VJW

Document 217-6

Filed 10/02/2006

Page 3 of 3

Last, assuming an expert (survives any potential challenge) and offers his opinion, I again you disagree and the expert's report. If propose that both sides stipulate to the admissibility of
the reports, then I remind you that we have identified the various the data tables, exhibits, and appendices from our expert reports as FRE 1006 summaries of
wil contest the admissibility of

analyses our experts conducted. As you know, we have previously produced the expert data and analyses.

Sincerely,

s// Steven D. Bryant Steven D. Bryant

-3-