Free Response to Motion - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 202

Filed 09/20/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _________________________________________ ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) _________________________________________ ) CAROLE AND ROBERT TESTWUIDE, et. al.,

No.: 01-201L Judge Victor J. Wolski

PLAINTIFFS' OPPOSITION TO ALTERATION OF TRIAL SCHEDULE The Government has filed a motion seeking the extraordinary measure of moving to Washington, D.C. only a portion of a trial that has been set since January of this year. The grounds for this extraordinary measure are nothing more than the normal issues that arise in the course of planning a long trial. The present motion appears to have been contrived for some purpose known only to the Government. The motion comes at the end of a series of conversations and correspondence in which the Government has sought to either delay this trial or limit Plaintiffs' ability to present their case. On September 14, 2006, Plaintiffs emailed the attached letter (Ex. A) to counsel for the Government agreeing to the Government's suggestion that the parties streamline the trial, first by dividing the time allotted to each party by hours, and second by introducing some witnesses by deposition instead of live testimony. On September 18, 2006, the Government responded (Ex. B), opposing Plaintiffs' suggested allocation of time. More importantly, the Government proposed that the first

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Case 1:01-cv-00201-VJW

Document 202

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day of trial be delayed until October 19, 2006 and that the entire trial be moved from Hampton Roads to Washington, D.C. after an inexplicable delay between November 6 through November 10. In addition, the Government suggested a bifurcation of the liability and damage phases of the trial, a proposal it vigorously opposed in a previous status conference. On September 18, 2006, Plaintiffs responded (Ex. C) opposing the Government's proposals. For the reasons stated in the letter, Plaintiffs oppose the Government's motion. The parties have been operating under a Scheduling Order setting the date for trial since January 19, 2006. This case was filed in April 2001. The problems complained of by Defendant are no more than the ordinary difficulties typically experienced by parties involved in extended litigation. The scheduling of witnesses frequently requires adjustment and flexibility. Plaintiffs also have witnesses who cannot be available on certain days or for certain periods and counsel have simply scheduled the presentation around those limitations. Moreover, the November 6 through 10 time period is most likely to be a period in which Plaintiffs will present their rebuttal case. There should be no (or few) defense witnesses that week. The unavailability of the courtroom in Chesapeake on three of the total number of days set aside for trial is not a reasonable basis for changing the venue of any portion of the trial. It is not uncommon for parties to put witnesses on out of order when it is necessary to meet a witnesses' scheduling conflict. In addition, the availability of hotel rooms is a red herring. The Hampton Roads area, which includes a large resort area, has

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Case 1:01-cv-00201-VJW

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abundant hotel space in October and November.1 Moreover, if there were any credence to the Government's argument, virtually all of Defendant's witnesses are active or retired service personnel who could be accommodated in one of the many BOQ's in the Hampton Roads area. On the morning of September 20, counsel for Plaintiff and an attorney for the Government visited the Chesapeake courthouse set aside for the trial. The courtroom is fully electronic with built-in (1) overhead projector, (2) large pull-down screen, (3) document cameral, and (4) electronic whiteboard. The courtroom is also set up with monitors for the Judge, witness, clerk and counsel. It could not be more perfectly set up for electronic presentation. We were also assured that the courtroom is set aside for our trial and there is no likelihood of losing more days to unscheduled appeals. There are two conference rooms available for use by counsel and witnesses and a jury room available for witnesses and for storing equipment and files during the course of the trial. The court's Clerk also advised us that the courtroom will be locked at the end of each day and counsel and the Court, if they choose, can leave their files and equipment in place. The Government previously opposed bifurcation and Plaintiffs, after consideration, informed the Court that they would not move for bifurcation. Plaintiffs now have fully planned their presentation of the case and have scheduled all of their witnesses, including experts, to appear at trial in Chesapeake. An alteration of the entire character as well as the venue of the trial would impose a severe hardship on Plaintiffs and their witnesses. Respectfully submitted,

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Counsel for Plaintiffs, on the afternoon of September 19, 2006, were able to confirm the availability of a block of rooms at the Virginia Beach oceanfront at the Days Inn at a corporate rate of $80.00 per night for the week of November 6 through November 10. Plaintiffs' counsel expect that there will be numerous hotel rooms available during the entire period set aside for trial.

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Filed 09/20/2006

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Dated: September 20, 2006 /s/ Jack E. Ferrebee Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12B Virginia Beach, VA 23451 (757) 452-5200 Counsel for Plaintiffs Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 40 West Chesapeake Avenue Suite 408 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected]

Kristen Hofheimer Charles R. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Stephen C. Swain Thomas Shuttleworth Lawrence Woodward Shuttleworth, Ruloff, Giordano & Swain 4525 South Boulevard Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] CERTIFICATE OF SERVICE

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Case 1:01-cv-00201-VJW

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Filed 09/20/2006

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I certify that a copy of the foregoing Plaintiffs' Memorandum was sent electronically this 20th day September 2006 to counsel of record, as follows: STEVEN D. BRYANT Environment & Natural Resources Division Department of Justice 601 D Street, N.W., Rm. 3205 Washington, D.C. 20004 /s/Jack E. Ferrebee Jack E. Ferrebee

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