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

Case 1:01-cv-00201-VJW
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

3 CAROL AND ROBERT TESTWUIDE, ) ) 4 Plaintiffs, ) ) 5 v. ) NO. 01-201L ) Judge Victor J. Wolski 6 THE UNITED STATES OF AMERICA, ( ) 7 ) Defendant. ) 8 9 10 11 12 13 14 15 16 17 18 Appearances: 19 20 21 22 23 24 25 HOFHEIMER/FERREBEE, P.C. By: JACK E. FERREBEE, ESQUIRE Counsel for the Plaintiffs DEPOSITION UPON ORAL EXAMINATION OF KIMBERLY JOHNSON TAKEN ON BEHALF OF THE DEFENDANT Virginia Beach, Virginia November 30, 2005

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00005 1 understand, even if it is only a part of my question that 2 you don't understand, please say so and I will rephrase it 3 until you do understand it. If you do answer my question, I 4 will assume that you've understood it. Is that fair? 5 A. 6 Q. Sure. What did you do to prepare for your deposition

7 today? 8 A. I looked up the date at which I purchased my home

9 in the noise areas. And that was it. 10 Q. 11 A. All right. Where do you live right now? I live at 4412 Reynolds Drive. Virginia Beach,

12 Virginia. 23455. 13 Q. 14 A. 15 Q. 16 A. How long have you lived in that home? Since 2000. Do you remember the month in 2000? I believe it was in the fall, but I don't

17 remember the exact month. 18 Q. Let me back up just a little bit. Could you tell

19 me about your education after high school? 20 A. I attended Allegheny College, A-l-l-e-g-h-e-n-y,

21 in Meadville, Pennsylvania. Meadville is all one word. I 22 began that directly after high school in 1975. I completed 23 my degree early in 1978. 24 Then I also attended Loyola College in Baltimore, 25 Maryland for my Master's degree in counseling psychology.

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00006 1 And the dates were, I believe, 1981 through '83. 2 Q. 3 A. When did you -- go ahead. I am sorry. And then just workshops and various continuing

4 education credits. 5 I also have a degree, or a license in Virginia to 6 practice real estate, which I obtained in 1999. 7 Q. When did you first move to the Hampton Roads

8 area? 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. 1986. And where did you live at that time? Portsmouth, Virginia. How long did you live in Portsmouth, please? Until 1990. Where did you go at that point? North end of Virginia Beach. Well, actually no.

16 Before that Hilltop. In 1990 I moved to an apartment, Chase 17 Pointe apartments. Chase with an e on the end and Pointe 18 with a e, in the Hilltop area. 19 Q. 20 A. 21 then. 22 Q. 23 A. The name of the apartment complex has changed? Right. I think they switched over to condos Is that in Virginia Beach? Correct. I believe the name has changed since

24 right now. 25 Q. Do you know the name now?

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What time did you live in those apartments? Until mid 1991. Then where did you move? 203 85th Street in Virginia Beach at the north

How long were you at that location? Until I moved to 3220 Sugar Creek Drive ten years

9 ago today, which is the date that I looked up. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. Sugar Creek Drive? Sugar Creek, all one word, Drive. So from 1991 until 2000? Correct. All right. Well, let's see. Yes. Well, I sold the property

16 -- I moved out in 2000. That is correct. Yes. 17 Q. Did you move out of the Sugar Creek Drive

18 residence before you sold it? 19 A. 20 Q. Yes. When did you actually sell the Sugar Creek Drive

21 residence? 22 A. In 2000. Let me see. I sold Sugar Creek, I

23 believe it was 2001, but I don't remember the month. 24 Q. I have -- I've brought with me here a map. This

25 is one of the recently published joint land use study maps.

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00009 1 know if you did that, but if you could put a number 2 by 2 that? 3 A. 4 Q. 2? Yes, ma'am.

5 Now, you have marked with respect to the Reynolds 6 Drive an area in Thoroughgood -- is that how it is 7 pronounced -- neighborhood. 8 A. 9 Q. Yes. And that's the neighborhood that you live in at

10 the moment? 11 A. 12 Q. Currently, yes. In 1999 you lived at the Sugar Creek Drive

13 residence? 14 A. 15 Q. Yes. When did you first become involved with Citizens

16 Concerned About Jet Noise? 17 A. 18 Q. Early in 1999. Do you recall what the motivating event was, if

19 there was one? 20 A. 21 Q. 22 A. Yes. Can you tell me what that was, please? I was sitting at my desk trying to talk to a

23 client. I could not hear on the telephone. It was 24 embarrassing to me. I had to hang up and tell them that I 25 would call them back later. And I decided in that moment

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00010 1 that if I was not part of the solution I was part of the 2 problem. 3 Q. 4 A. 5 Q. 6 A. 7 Q. Do you work out of your home? Yes. Did you at that time? Yes. So the incident that you were describing occurred

8 at your house on Sugar Creek Drive? 9 A. 10 Q. Correct. Have you continued to work out of your home since

11 then? 12 A. 13 Q. Yes. Which ever home it was at the time, Sugar Creek

14 Drive, Reynolds? 15 A. 16 Q. Predominantly, yes. Has CCAJN, as citizens concerned about jet noise

17 is generally called, has CCAJN provided as a group any 18 assistance to this lawsuit? 19 A. 20 Q. Not to the best of my knowledge. Do you know a gentleman named Noral, N-o-r-a-l,

21 Stewart. S-t-e-w-a-r-t? 22 A. 23 Q. No. Mr. Stewart, as I understand it, is an acoustical

24 consultant. 25 A. He may be, but I don't know him.

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00012 1 that was in 1999. Do you recall when in 1999? 2 A. 3 Q. 4 A. Spring. Did you know what kind of aircraft it was? I was really ignorant about the aircraft at that

5 time. 6 Q. Do you have a better understanding of what the

7 different aircraft types are now? 8 A. 9 Q. Somewhat. If you saw the various kinds of aircraft that you

10 see flying nearby or overhead would you know the difference? 11 A. Depending upon the altitude and the situation,

12 you know, with the weather conditions, probably. 13 Q. Did there come a time after the realignment of

14 the F/A-18 C/D aircraft that you noticed a greater impact 15 from aircraft operations? 16 A. See, I was hazy as to what jets were flying

17 overhead at the time. All I knew was that new jets were 18 coming to the area and that the quality of the noise had 19 changed. 20 Q. 21 A. 22 Q. What do you mean by the quality of the noise? Louder. So you are referring strictly to the level, I

23 suppose, to some other components of sound? 24 A. I know that I was hearing a different sound. And

25 the event that occurred was so loud and so frequent that

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00013 1 that was like when I decided that I was going to take a 2 stand. 3 Q. Did you notice a change from the time that you

4 moved into the Sugar Creek Drive residence, and if so when 5 did you notice that change? 6 A. The biggest change for me started in the spring

7 of 1999. So whatever those planes were, that's when I 8 noticed there was a tremendous difference. 9 Q. 10 A. And that change again was specifically what? Frequency, duration, the decibels themselves, and

11 then the quality of the sounds. There were overflights. 12 Nearby flights. As well as a low intensity sound, a 13 rumbling sound which I've since learned are jet engine 14 work-ups on the ground. 15 Q. 16 A. 17 Q. Not from overflights? Correct. Before you noticed this change in 1999, I think

18 you said the spring of 1999, was your house on Sugar Creek 19 Drive overflown directly by aircraft from the air station? 20 A. 21 Q. 22 A. 23 Q. 24 A. Yes. How frequently? Daily. Do you have a sense of how many times a day? I was home primarily early evenings, late

25 afternoons, when I would notice the frequency being the

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00014 1 greatest. But I really didn't pay much attention because 2 the sound didn't bother me, so I didn't look up in the sky 3 and count or care. 4 Q. I think you indicated they were overflying your

5 house directly. Do you mean straight overhead or -6 A. Sometimes, yes.

7 MR. FERREBEE: Make sure you let him finish the 8 question before you answer. 9 A. I am sorry.

10 MR. FERREBEE: It makes it hard for the court 11 reporter. Okay. I am sorry. Go ahead. 12 BY MR. SMITH: 13 Q. Are you able to characterize what percentage of

14 the time the planes were flying directly overhead? 15 A. Not at that time because they really weren't

16 bothering me. So I didn't count or make a log or anything 17 like that. 18 Q. Do you have any idea what altitude the planes

19 were flying? 20 A. 21 Q. 22 A. I could only guess. What is your guess? It was in the landing pattern. And they would

23 turn to go in on runway, I believe it is 4 or 5 I've since 24 learned, and they would be descending, and so the altitude 25 really varied a great deal.

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00019 1 the obligation on the part of the people described there, 2 including real estate agents for disclosure of what is 3 described there? 4 A. 5 Q. 6 A. 7 Q. That's what I have been told. Is that your understanding as an agent? Yes. Was that, to your knowledge, the requirement in

8 1995 when you bought the Sugar Creek Drive residence? 9 A. 10 Q. Yes. Does that accurately describe what Ms. Hurst

11 provided by way of disclosure to you and to your husband? 12 A. 13 Q. I was not married at the time. Yes. Okay.

14 What other impacts, if any, did the changes that 15 you have described in 1999 and the impact of operations have 16 on your use of the property at Sugar Creek Drive. 17 A. There was difficulty performing almost any type

18 of task outdoors without discomfort when they were flying 19 overhead or nearby. Difficulty hearing on the phone. 20 Carrying on a conversation. Listening to the television. 21 And most definitely difficulty trying to get to sleep at 22 night. And waking up in the middle of the night due to 23 aircraft operations. 24 Q. The difficulty that you had talking on the phone

25 that you just described, for example, now was that true with

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00020 1 the windows of the house open, shut, or did it matter? 2 A. If they were shut it was still very bad. Open,

3 worse. 4 Q. Did it have any impact on your ability to conduct

5 activities outside? 6 A. 7 Q. 8 A. Yes. What was the nature of that impact? I used to garden outdoors and could spend the

9 whole day gardening, for example, on a weekend, or a 10 weekday, for that matter, and not have any discomfort 11 whatsoever. But after the influx from Cecil, I really 12 couldn't spend much time in my yard at all. 13 Q. When you say the influx from Cecil, what are you

14 describing? 15 A. 16 Q. Jets that they brought up from Cecil. So if I say the realignment of the F/A-18 C/D

17 aircraft, and you say the influx from Cecil, we are talking 18 about the same thing? 19 A. 20 Q. I believe so. What motivated you to move out of that property

21 on Sugar Creek Drive? 22 A. Sleep deprivation predominantly. And overall

23 general physical difficulties with the jet noise that we 24 were experiencing. 25 Q. Was the sleep deprivation true both for you and

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I'm not sure from that property. We have

2 overflights where we live and I have retained those, yes. 3 Q. Do you know if your husband has any of whatever

4 kind of records he may have kept for the Sugar Creek Drive 5 property? 6 A. 7 Q. 8 A. 9 Q. No. No, you don't know? Correct. I believe you said that you sold that property in

10 2001? 11 A. 12 Q. Yes. Do you recall how much you paid for the property

13 in the first place? 14 A. 15 Q. 16 A. 17 Q. Eighty nine nine. Okay. And how much did you sell it for? $95,000. Do you believe that the operations of the F/A-18

18 C/D aircraft at Oceana had an impact on the sales price of 19 the property? 20 A. 21 Q. 22 A. Yes. What do you think the impact was? I think that a property of equal square footage,

23 composition, year built, et cetera, would have yielded more 24 money in a different part of the city further away from 25 Oceana in a different noise zone.

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Do you think though that the arrival of the

2 aircraft F/A-18 C/D aircraft, that event, caused an impact 3 to the sales price? 4 A. 5 Q. 6 A. Yes. Why do you believe that? Because the noise became much more intolerable.

7 And as with anything, when you are given two choices, noise 8 or no noise, all of the other things being equal, you are 9 going to get a better price for your home. 10 Q. Did you sell the property yourself, or did you

11 have an agent do it? 12 A. I had it listed in the Multiple Listing Service

13 and I was the listing agent. 14 Q. 15 A. 16 Q. 17 A. 18 Q. So you sold the property yourself? Correct. What did you ask as a price for it? The $95,000. So you didn't attempt to market it for higher

19 than that? 20 A. Actually I may have put $98,000. I don't recall.

21 I would have to look at my records. 22 Q. 23 A. 24 Q. How long was the property on the market? I don't remember. I would say less than a month. From your experience as an agent in the area, is

25 that typical?

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00036 1 who specialize in that area? 2 A. 3 Q. I do not specialize in an area.

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Do other agents specialize in that geographic

4 area? 5 A. 6 Q. I don't know. Getting back to the Torres to whom you sold the

7 Sugar Creek Drive property, you said earlier that they were 8 not -- my word not yours -- deterred by your description of 9 the impact of operations. My question is whether that 10 reaction, in your experience as an agent in this area, 11 whether it is personally or not, is typical? That is people 12 knew about the potential impact and bought the property 13 anyway? 14 A. I have heard of instances where this has

15 occurred. 16 Q. 17 A. 18 Q. Does that occur frequently? I don't know. After the realignment of the F/A-18 C/D aircraft

19 did you notice any other changes from what had occurred 20 prior to that in terms of aircraft operations other than 21 what you have already described? 22 A. 23 Q. 24 A. Yes. Tell me about that, please? Greater variation in the pattern. More to the

25 left. More to the right. More over the house. Lower.

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00037 1 That sort of thing. 2 Q.

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You mean the F/A-18 C/D aircraft were more varied

3 in the way they flew than the aircraft that preceded them? 4 A. I believe the pilots that were flying them

5 created situations for greater variance, whatever it was. 6 Q. But was that true with respect to the F/A-18 C/D

7 aircraft, or do you know? 8 A. 9 Q. I don't know. At the time that you were living in Sugar Creek

10 Drive, did you, if an F-14 had flown nearby, would you have 11 known the difference between that or an F/A-18 C/D aircraft? 12 A. When I first lived there it was only F-14s. And

13 then when the other jets started flying I could hear a 14 noticeable difference. 15 Q. I am talking about the pattern variation that you

16 described? 17 A. It appeared to me that the F-14s would fly a

18 tighter pattern than the other aircraft. 19 Q. Is this an observation that you made while you

20 were living at that property, Sugar Creek Road? 21 A. 22 Q. Yes. Did you, therefore, recognize the difference

23 looking at the airplane between an F-14 and some other sort 24 of airplane? 25 A. Yes.

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00047 1 yourself? 2 A.

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I have done a rudimentary analysis of some of the

3 neighborhoods that I know to have similar types of 4 construction and were built about the same time. Similar to 5 the home that I lived in. 6 Q. 7 A. On Sugar Creek Drive? Sugar Creek Drive versus another part of the city

8 further away in the 65 and under DB, and I was able to 9 quantify to my own satisfaction there was a pretty good 10 price variation. 11 Q. 12 A. Price variation in what? In that the homes closer to Oceana of similar

13 size, age and construction, were selling for less than their 14 counterparts outside of the 65 DB noise zone. 15 Q. Do you know if those properties sold for less

16 before the C/D aircraft arrived, all things being equal? 17 A. I wasn't able to log into the computer far back

18 enough in order to obtain that information. 19 Q. 20 A. 21 Q. 22 A. The rudimentary analysis -Yes. -- that you described, do you still have that? I didn't write that down anywhere. I went into

23 the computer, pulled the information, looked at it and 24 satisfied my curiosity. It is not like I had a lot of time 25 to be doing that sort of thing.

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Did you know the Levinsons before then at all? No. Are you the chair of CCAJN right now? Yes. How long have you been the chair of CCAJN? Since John Shick stepped down. I would have to

7 go back to my records. It was in the fall. It seems like 8 it has been a very long time. 9 Q. 10 A. Fall of which year? I want to say '03, but I am not sure. It has

11 been awhile. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. Is Mr. Levinson an officer in CCAJN? No. Was he? I don't think so. He has never been, to your knowledge? He is a board member and a spokesperson. Why were the CCAJN meetings in the Levinson home

19 as opposed to some other location? 20 A. 21 Q. 22 A. 23 Q. 24 A. 25 Q. Convenience. In terms of what? Location. You mean it was convenient for the members? Yes. A central location?

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00060 1 A. 2 Q. Correct.

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Could you please just indicate for me on the map

3 where the Levinson home is? 4 A. They live in Great Neck Meadows, which is east of

5 Great Neck Road, west of First Colonial Road, and very close 6 to Old Donation Road. 7 Q. So in the, at least generally in the neighborhood

8 on this map that's called Great Neck Meadows? 9 A. 10 Q. 11 A. 12 Q. Yes. North of the air station? Yes. What, if anything, do you remember about F/A-18

13 C/D aircraft operations with respect to that property? 14 A. 15 Q. 16 A. 17 Q. Low, loud and frequent. Are they underneath the touch and go pattern? I believe they are in the flight pattern. Are they underneath the touch and go pattern in

18 particular, if you know? 19 A. 20 Q. I believe so. Is that -- was your experience of F/A-18 C/D

21 aircraft operations at that house different in any way from 22 your experience at the Sugar Creek Drive residence that you 23 lived in? 24 A. 25 Q. Yes. How so?

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00126 1 when you first became involved in this lawsuit, and as I 2 recall you didn't remember. 3 Different question now. Why did you get involved 4 in the lawsuit? And again I am not asking about any 5 communications you had with your lawyer. I am asking about 6 your particular motivation. 7 A. I became involved in this lawsuit because I

8 believe a taking has occurred. I believe that the level of, 9 the capacity to be able to sleep and enjoy the quiet of your 10 home, let alone be able to go outside, is something that 11 should remain close to constant. Within a range, let's say. 12 But that when it becomes so detrimental to -- when it became 13 so detrimental to my health and my life-style that these 14 jets were flying over my home and around my home with the 15 frequency and intensity and the noise levels that were being 16 created, that it was incompatible with human life, that it 17 is so bad and so detrimental that somebody needs to be held 18 accountable for it, and that if this is what it takes, then 19 so be it. 20 Q. Have you had any health problems related to

21 operations of the F/A-18 C/D aircraft at Oceana? 22 A. I was having trouble sleeping at night and I was

23 very agitated. I went outside my home one day when I 24 couldn't hear in my home to conduct business, and when I 25 walked outside a jet flew over so low and so loud that I

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