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 6 7 vs. 8 Plaintiffs, * * * NO.: 01-201 L * *

9 THE UNITED STATES OF AMERICA, * 10 Defendant. *

11 * * * * * * * * * * * * * * * * * * * * * * * * * * 12 The deposition of SANFORD FIDELL was taken on

13 Friday, December 16, 2005, commencing at 9:40 a.m., 14 at the offices of UNITED STATES DEPARTMENT OF 15 JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION, 16 601 D Street, N.W., Washington, D.C., 20004, before 17 Cheryl A. Lord, Notary Public. 18 * * * * * * * * * * * * * * * * * * * * * * * * * * 19 20 Reported by: 21 Cheryl A. Lord, RPR, CRR

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00010 1 different acousticians at different levels of 2 expertise? 3 In other words, can you be a

4 board-certified acoustician under the Acoustical 5 Society of America? 6 A. Not to my knowledge. 7 There are different grades of membership

8 from student and associate through full member 9 through a fellow of the society. 10 Q. Okay. And is there a parallel between 11 your Ph.D. in experimental psychology and your 12 field as an acoustician? 13 A. The intersection of acoustics and 14 experimental psychology is often referred to as 15 psychoacoustics. I suppose you could consider me a 16 psychoacoustician. 17 Q. A psychoacoustician, is that exactly what 18 you've described to me that you do in performing 19 control studies and the like? 20 Is that what we're talking about?

21 A. Yeah.

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00011 1

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A psychoacoustician is someone who is

2 involved with the effects of sound on individuals 3 or communities, groups of people. 4 Q. Do you have any specialized training 5 beyond your Ph.D.? 6 A. Well, of an academic nature or of any 7 nature? 8 Q. Of an academic nature. 9 A. No, not of an academic nature. 10 Q. And in the area of acoustics or 11 noise-related subjects, do you have any specialized 12 training beyond your Ph.D.? 13 A. Well, many years' worth of experience 14 with the tools of the trade. 15 Q. Now, after your -- let me start with your 16 undergraduate work. 17 While you were doing your college

18 studies, did you work in the field of acoustics at 19 all? 20 A. No. 21 Q. When did you first begin your field of

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Case 1:01-cv-00201-VJW
00031 1 conversation with Wyle Labs?

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2 A. I think it was to verify my understanding 3 of the noise modeling that Wyle had conducted. 4 Q. Do you remember for what period of time? 5 A. No, I don't. 6 Q. It could have been specifically noise 7 modeling with respect to Vivian's Island? 8 A. Yes. 9 Q. And not noise modeling generally? 10 A. No, with respect to assumptions about 11 numbers of aircraft, types of operations, and so 12 forth. 13 Q. Did you receive anything from Wyle Labs 14 at that time by way of email or in writing with 15 respect to noise modeling at Vivian's Island? 16 A. I don't think so. 17 Q. Now, in preparation for your 2002 report, 18 the one we're talking about in the class 19 certification phase, did you make any visits to 20 Oceana Naval Air Station? 21 A. No, I did not.

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00033 1 values in the peninsula area.

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2 Q. You've done one for Langley Air Force 3 Base, Hampton, Virginia, related to property 4 valuation, am I correct? 5 A. That's correct. 6 Q. Is that the one you were talking about, 7 the time when you might have been in Virginia Beach 8 at the time you were doing that study? 9 A. Yes. 10 Q. So other than the time -- well, the time 11 you went to Virginia Beach and you saw some houses 12 there, you didn't do any site noise studies or 13 field studies of noise in the area of Oceana, did 14 you? 15 A. No. 16 Q. Have you ever personally undertaken to do 17 any field studies of noise in the area around 18 Oceana? 19 A. No. 20 Q. When was it you were contacted and by 21 whom to be an expert in this case, in the Testwuide

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00035 1 correct?

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2 A. Not a specific economic analysis in this 3 matter. 4 Q. If it's not specific, are you generally 5 contracted with the government in this case to 6 provide economic testimony of any kind? 7 A. Only tangentially with respect to the 8 primary work that I've done on noise modeling. 9 Q. And what tangential economic commentary 10 would you provide in this case, tangential to your 11 field as a psychoacoustician? 12 A. Well, I don't know that it would actually 13 be in the form of testimony, but I have had 14 conversations about the general effects of aircraft 15 noise on property values. 16 Q. And you've done at least one study in 17 that area that involved Langley Air Force Base in 18 Tucson. 19 Am I correct?

20 A. That's correct, Davis Monthan Air Force 21 Base.

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00049 1 compatibility in terms of decibel values. 2 Q. Okay. Well, since in your opinion noise 3 exposure as expressed in DNL is not a unique 4 predictor of the impact on lands, would you 5 disagree with the Navy's approach to its AICUZ 6 program? 7 8 MR. BRYANT: Objection. BY MR. JACK FERREBEE:

9 Q. You're okay to answer the question. He 10 just interposed an objection. 11 Go ahead.

12 A. There is no perfect predictor of -- no 13 perfect acoustic predictor of the effects of noise 14 on people, because the effects of noise on people 15 are not uniquely determined by any acoustic 16 measure, and DNL is among those that have been 17 studied more carefully than other measures and is 18 highly correlated with other reasonable metrics. 19 However, it is not a perfect predictor of

20 noise impacts. If there were a clearly superior 21 metric, then I suppose I would prefer that be used

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00050 1 rather than DNL, but since there isn't a clearly 2 superior metric to DNL, I don't know that I 3 formally disagree with its use as a less than 4 perfect measure of noise impact. 5 Q. So to summarize, for the present time as 6 we sit here today, this is as good as the 7 government can do -- or as well as the government 8 can do. 9 10 11 I'm sorry. MR. BRYANT: Objection. This is a 1979 document, number 1, and

12 objection to the characterization, for this witness 13 to opine. 14 A. Would you restate the question, please? 15 BY MR. JACK FERREBEE:

16 Q. If there were something else the 17 government could do in the development of its AICUZ 18 program as we sit here, other than convert DNL into 19 noise impacts, what would that be? 20 MR. BRYANT: Objection, personal

21 knowledge of everything the government has done in

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00053 1 novelty of exposure and came up with letter 2 ratings, A, B, C, D, so forth, that sought to 3 characterize the overt behavioral consequences such 4 as complaints and litigation arising from noise 5 exposure at military installations. 6 It was better than the prior state of the

7 art, which was effectively nonexistent, but rapidly 8 -- "rapidly" is a relatively term -- within 10 or 9 15 years was supplanted by the noise exposure 10 forecast predictor. 11 Noise exposure forecast was very similar

12 to DNL, except that the frequency weighting scheme 13 was based on perceived noise level rather than on 14 the A weighting, and the arithmetic with which it 15 was calculated led to numerically smaller values 16 than DNL values for the same exposure conditions. 17 The day-night average sound level did not

18 gain currency as a universal summary of noise 19 exposure due to aircraft and other sources until 20 its adoption by the Environmental Protection Agency 21 in 1974, and it shortly thereafter swept the field

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00148 1 A. I think they were referred to -- they 2 were long ago, not current. 3 Q. Okay. Have you seen any documents that 4 graph out for you the number of noise complaints at 5 NAS Oceana from 1972 through the year 2000? 6 A. No, I haven't. 7 Q. Did you ask to see documents like that? 8 A. No, I didn't. 9 Q. Would those documents be in any way 10 helpful to you in doing the kind of analysis you 11 did here? 12 A. Well, for purposes of reconstructing 13 noise exposure, they would be of very little use. 14 The point of this work was simply to document that 15 the issues at -- of the current litigation are not 16 novel and they've been around for decades. That's 17 the only statement, the import of this. 18 Q. Do you understand from the way noise 19 modeling works with NOISEMAP and the flight tracks 20 as they are laid out over land in the AICUZ noise 21 contour, that those flight tracks that you see on

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