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 BETTY A. VAN NOSTRAND TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 July 27, 2005 16 17 18 19 Appearances: 20 SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P.C. Van Nostrand, Betty 07.27.05 By: STEPHEN C. SWAIN, ESQUIRE

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00008 1 Q. But you and your husband both had the sort of 2 skills to fix the house up, that kind of thing? 3 A. Oh, yes. 4 Q. I believe your husband was a plumber at one time? 5 A. Yes. 6 Q. So he's very handy I assume? 7 A. Yes. 8 Q. And how many bedrooms and bath and that kind of 9 thing was in the house at the time? 10 A. Three bedrooms and two baths. 11 Q. Has that expanded any since you bought the house? 12 A. No. As far as the bedrooms and baths, no. 13 Q. But you have done renovations on the bath? 14 A. A lot, yes.

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15 Q. Now, when you bought the house in 1967, were you 16 aware that Naval Air Station Oceana -- were you aware of 17 where it is at that time? 18 A. Oh, yes. 19 Q. And were you aware that jets flew in and out of 20 there on a daily basis? 21 A. Yes, but it wasn't bad. Now it's really bad.

Van Nostrand, Betty 07.27.05
22 Q. And when you say it wasn't bad at the time, what

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00013 1 MR. SWAIN: What do you mean by overflights? 2 MR. BRYANT: Well, let's just see if the witness 3 understands the question. 4 A. Well, the planes started getting bad in the '90s, 5 that I remember. And I think it was about '99 when they 6 really started to get bad when I think it was the F-18s or 7 something came in. Then it was almost unbearable. 8 Q. Now you say in the '90s, it got bad. And even 9 you said in '99 or at some point around there it really got 10 bad? 11 A. Yes. 12 Q. When you say it got bad in the '90s, when did 13 that happen? 14 A. I don't remember the dates at all. 15 Q. Why do you say the '90s, then? What about the 16 '90s? 17 A. Well, it just kept building up, the airplanes, 18 until later when the big airplanes came. More airplanes 19 came in around '98 to '99. 20 Q. '98 to '99?

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21 A. And it was real bad. And it is now.

Van Nostrand, Betty 07.27.05
22 Q. Now leading up to '98, '99, you're saying it was

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00014 1 or a problem? 2 A. Well, in '99 when they sent these F-18s in. 3 Q. Well, yes, and you mentioned in your testimony a

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4 minute ago that it really got bad in the time when the F-18s 5 arrived, I believe was your description? 6 A. Yes. 7 Q. But I believe you said before that that it got 8 bad in the '90s, it was progressively worse? 9 A. Yes, it did. The airplanes were different. But 10 then as they moved more airplanes in it steadily got worse. 11 Q. And what I'm trying to understand is in the time 12 preceding when you say it really got bad, was it -- you said 13 it was bad in the '90s, also. When did that part -- when 14 did it become a problem at all? When in the '90s? 15 A. Well, I don't remember it really being a problem. 16 I just remember the airplanes getting louder. 17 Q. And when did that start, that they started 18 getting louder? 19 A. Like I said, in '98 and '99. I think they came 20 in around July, August, or something, of '98. But it was 21 '99 that we really noticed it real bad.

Van Nostrand, Betty 07.27.05
22 Q. So you are saying up until '98 and '99 from

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00017 1 did you keep a log of suddenly it's getting louder? 2 A. No. 3 Q. Something that sort of defines that time period. 4 That's what I'm getting at. 5 A. No. 6 Q. But your recollection is, it's about six years to 7 seven -- well, I guess five to six years before the '99 time 8 frame when you say it really got bad? 9 A. Yes. 10 Q. It was steadily progressing and getting worse? 11 A. Yes, sir. But '99 they really start -- was bad. 12 Q. And before '93, '94 time frame, before that, as 13 you said steadily progressed and got louder? 14 A. Yes. 15 Q. From 1967 until then, was it -- was the jet

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16 noise, the overflights about the same from that period, '67 17 until '93? 18 A. Yes. They never bothered us much. 19 Q. And so they first started bothering you in '93, 20 '94, and it got worse and worse through '99? 21 MR. SWAIN: Objection to form.

Van Nostrand, Betty 07.27.05
22 A. Yes.

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00029 1 MR. BRYANT: Your objection is noted. 2 BY MR. BRYANT: 3 Q. From '93 to '99, in that period, did you 4 experience, if you recall, an increase in flights during 5 that period? 6 A. I really don't remember. I don't remember. 7 Q. But you do remember that, at least your 8 recollection is it got progressively worse from '93 to '99 9 when it, as you said, got really bad? 10 A. Yes, sir. 11 MR. SWAIN: Objection. Asked and answered. 12 BY MR. BRYANT: 13 Q. Now, going back to 1967, to 1993 -- I'm sorry. 14 Strike that. 15 Starting in -- you said it really got bad you 16 said in June, July of '99. Is that right? 17 A. Yes. 18 Q. And tell me how it was -- what you mean by really 19 got bad. How was it different? 20 A. Airplanes were so much louder. Even with all the 21 windows closed and the air on, I could still hear the

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Van Nostrand, Betty 07.27.05
22 planes. They were bad.

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00030 1 when a jet's flying over. 2 A. I would have to tell the person to hold on for a 3 few minutes, even in the house. That's not outside. 4 Q. In the house. And you say a few minutes? 5 A. A minute, you know. 6 Q. What about, do you watch television, you and your 7 husband? 8 A. Some, yes. 9 Q. Would it have any impact on your watching 10 television? 11 A. Well, yes, if we were watching the evening news, 12 it does. 13 Q. Tell me how it does? 14 A. Well, you can't hear it. 15 Q. For how long? 16 A. You can't hear the television. 17 Q. For however long it takes for the jet to fly 18 over? 19 A. Yes. 20 Q. And going back to '93 to '98 time frame, before

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21 '93, could you hear the television when you had jets flying

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22 over?

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00048 1 Q. Do the flights ever wake you up when you are 2 asleep at night? 3 A. Yes, they do. Because we go to bed extremely 4 early. And they are still flying sometimes after 11 5 o'clock. 6 Q. What time do you go to bed, if I may ask? 7 A. I think 9:30, 10 o'clock. We get up at 5:30 or 6 8 every morning. 9 Q. That would probably normally be a good time to 10 beat the heat, but it's not right now. 11 A. Not right now. 12 Q. So you will go to bed at 9:30 or 10 and can you 13 fall asleep and then the jets would wake you up later? 14 A. Yes. 15 Q. About how often does that happen? 16 A. Well, I can't say. Maybe once every two weeks. 17 Sometimes it's real bad. Sometimes it's twice a week. 18 Q. And do they wake up your husband too, or just 19 you? 20 A. Well, they do wake him up occasionally. He is 21 deaf, so it does get bad.

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Van Nostrand, Betty 07.27.05
22 Q. And did flights ever wake you up from the '93 to

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00049 1 A. I don't remember.

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2 Q. You don't remember. So they could have woken you 3 up, but you just don't remember? 4 A. That's right. 5 Q. And what about from 1967 until 1993. Do you 6 recall if flights woke you up then? 7 A. No. No. 8 Q. And is it that you don't remember? 9 A. I don't think they did. 10 Q. You don't think they did. But you are not 11 certain? 12 A. Well, I'm sure they didn't wake us up then. They 13 were never that loud is what I tried to say. 14 Q. Could they have woken you up back from 1967 to 15 1993 and you just don't remember it? Is that possible? 16 A. No. I don't remember, but I'm sure they didn't 17 wake us up. 18 Q. And you are drawing that conclusion because of 19 your perception of how loud the planes were then versus how 20 loud they are now? 21 A. Well, back then the planes, like I said, were not

Van Nostrand, Betty 07.27.05
22 this loud.

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