Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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00001 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 2 3 CAROL AND ROBERT TESTWUIDE, ) 4 et al., ) ) 5 Plaintiffs, ) ) 6 v. ) NO. 01-201L ) Judge Victor J. Wolski 7 THE UNITED STATES OF AMERICA, ) ) 8 Defendant. ) 9 10 11 DEPOSITION UPON ORAL EXAMINATION 12 OF HERBERT VAN NOSTRAND TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 April 27, 2005 16 17 18 19 Appearances: 20 SHUTTLEWORTH, RULOFF, GIORDANO & SWAIN, P.C. Van Nostrand, Herbert 04.27.05 By: STEPHEN C. SWAIN, ESQUIRE

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00012 1 Q. In 1967 we're talking about, that time frame.

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2 You were aware of jets flying near your house at that time? 3 A. Yes. 4 Q. Okay. And when you say -- could you describe 5 that again in terms of when you are on your front porch 6 where the aircraft would be flying? 7 A. Well, if I'm sitting on my front porch, I'm more 8 or less looking right towards the base just about, you know. 9 Q. Okay. 10 A. Then when the planes like circle around, it come 11 my way and go on over like the mall, you know, there, and 12 going to land. 13 Q. And when you say the mall, do you mean the 14 Lynnhaven Mall? 15 A. Yes, sir. 16 Q. Was that in existence in 1967? 17 A. I don't think -- I don't know. I don't exactly 18 remember when it was. No, I don't think it was. 19 Q. But you mean that general area? 20 A. Yes, sir. 21 Q. And when you say that general area, are you

Van Nostrand, Herbert 04.27.05
22 saying that's where the planes went over?

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00013 1 Q. How far is the mall from your house 2 approximately? 3 A. About three miles, two and a half, three miles. 4 Q. Okay. 5 Did the jets -- did the jets ever at that time 6 frame fly directly over your house? 7 A. They have, yes, at one time or another. 8 Q. Now going back to the 1967 time frame when you

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9 first moved into the house, were they flying over your house 10 then? 11 A. You know, I -- you know, I'd have to say yes 12 because there's jets flying, you know. And I would have to 13 say yes. 14 Q. All right. About how often did the jets fly 15 over, directly over your house in that time frame of 1967 16 through the '70s, that time frame? 17 A. Well, that's another question. You know, just -18 I just hear air pattern, I guess you call it. 19 Q. But when you were sitting on your porch back when 20 you first moved in your house, back in that time frame on 21 occasion --

Van Nostrand, Herbert 04.27.05
22 A. Yes.

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00014 1 often did that happen where it would be right above your 2 house? When I say above, it could be how high? 3 A. Quite often. Quite often. 4 Q. Quite often back then? 5 A. Yes. 6 Q. When you say quite often do you mean -- how many 7 times a month, approximately? 8 A. Oh, lord! 180. 9 Q. Oh, so very often then. Quite often? 10 A. Yes. Yes. 11 Q. So on a regular basis? 12 A. Yes. 13 Q. It was flying directly over your house? 14 A. At times directly over. 15 Q. Okay. 16 A. I mean when you say directly over, I'm talking 17 right straight up. 18 Q. That's what I'm talking too, so we're having a 19 mind meld here, so that's good. We're talking about the 20 same thing. 21 You said about 180 in terms of flights a month.

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Van Nostrand, Herbert 04.27.05
22 When you said 180, do you mean 180 directly above you or

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00032 1 A. Yes. 2 Q. How do you know that, that it became disruptive

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3 at that time? How do you know that? I mean why that -- why 4 do you say mid to late 1998? 5 A. That it became noisier? 6 Q. Yes. 7 A. Because you hear them up there flying. 8 Q. And you are certain it was in the middle to late 9 1998 that that happened? 10 A. I'd say, yes. 11 Q. Can you guesstimate -- well, do you recall about 12 what month that started happening that it really started 13 becoming disruptive? 14 A. I couldn't put the month to it, but it was in the 15 summer, you know. 16 Q. The summer of '98? 17 A. Yes. 18 Q. And in the summer of 1998 -- and correct me if I 19 am wrong -- it was difficult, if not impossible, to carry on 20 a conversation outside or inside your home, or to talk on 21 the telephone or to hear the television or radio during

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22 flight operations?

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00033 1 Q. Well, let me ask you this: What was it like 2 before 1998? 3 A. It was still noisy, but not as noisy. 4 Q. Okay. And could you carry on conversations 5 outside of your house before 1998? 6 A. Better. 7 Q. Better. Well, describe that to me. 8 A. Well, it just seemed to me like they didn't have

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9 the umph then that the planes later had, you know. Bearing 10 down and -- I mean it would burn you down like. You know 11 what I mean. 12 Q. Well, left me ask you this: The summer of 1998, 13 at that time frame, when you had just one airplane flying 14 over, was that one airplane enough to make it where you 15 couldn't carry on a conversation? 16 A. If it came right, yes. 17 Q. When you say came right, what do you mean? 18 A. Well, the closer it came like over the house, if 19 it come -- you know they sometimes -- they come different 20 directions. 21 Q. Okay. Well, when it was directly over your house

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22 you couldn't have a conversation?

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00034 1 Q. Then you could carry on a conversation? 2 A. That one, yes. 3 Q. You could carry on a conversation? 4 A. Yes, yes. If it's over that way, yes. 5 Q. Now, were there times when there were more than 6 one plane in a pattern going over your house? 7 A. Oh, yes. 8 Q. Directly over your house? 9 A. Not directly all the time. Off. Just, you know, 10 like sitting on the porch you look up, you know. 11 Q. And when you say -- when there's multiple planes

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12 in a pattern, how far away from directly above your house 13 would that be? Two blocks, three blocks? Half a mile? 14 A. How many -15 Q. If you can say? 16 A. Say two blocks. 17 Q. Oh, so pretty close then? 18 A. Yes. 19 Q. And how many planes would be in a pattern? 20 A. Most of the time, really, like, when they come 21 around -- well, three or more.

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22 Q. Okay. And what would be the maximum, if you can

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00088 1 Q. Why are you not considering putting your house on

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2 the market and moving somewhere else in Virginia Beach? 3 A. I have got my life there. You know, I have got 4 everything I ever had in my life sitting right there on that 5 one lot. And I just, you know, I'd fight four bulls to keep 6 it. And it's just something that, you know, you just don't 7 give up any kind of way. 8 Q. Did you ever keep any sort of log or 9 documentation of when -- of when the jets became to this 10 level? 11 A. When what came? 12 Q. When it became this level of impact that you are 13 talking about, of phone conversations and that kind of 14 thing? 15 A. That's for a while. But I didn't never keep 16 nothing, you know. 17 Q. You never kept a log? 18 A. No. No. 19 Q. And you have never called the air station about 20 the jet noise? 21 A. No.

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22 Q. And you have talked to -- well, strike that.

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