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 THEODORE RANKIN DINGLE TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 June 8, 2005 16 17 18 19 Appearances: 20 21 22 23 24 25 SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P.C. By: STEPHEN C. SWAIN, ESQUIRE Counsel for the Plaintiffs

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My name is Theodore Rankin Dingle. I live at 912

2 Carolina Avenue, Virginia Beach. 3 Q. 4 A. And what is your occupation? My occupation right now is part-time restaurant

5 bookkeeping. I'm hoping for jobs coming up. I retired from 6 the military about a year ago, and due to some medical joint 7 issues, I sort of got -- the job bypassed me and I'm waiting 8 for other employment. 9 Q. When you say the job bypassed you, what are you

10 referring to? 11 A. Well, when -- I was supposed to start when I

12 retired, and in January I had a shoulder operation. In 13 March I had a knee operation. So I was pretty well laid up 14 most of the summer. 15 Q. 16 A. And what position was that? It would have been for, I guess, a research

17 analyst of some sort. I have a bomb disposal specialty, and 18 that would have been AMTI, was the company name. 19 Q. 20 A. Does AMTI stand for something? AMTI. It's Advanced Maritime Technologies

21 Incorporated, I believe. 22 Q. 23 A. And where is that located? It's located in Lynnhaven. It's on Lynnhaven

24 Boulevard. 25 Q. So basically the Virginia Beach area?

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00020 1 through? 2 A. 3 Q. 4 A. 5 Q. 6 A.

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E-3, E-4, E-5, E-6, E-7, W2, W3, W4. And when did your military career end? April 1st of 2004. So it was roughly 29 years? 30 years and some odd months. I believe that was

7 the -- I became a diver in '75. I entered the Navy, started 8 boot camp in January of '73. Or '74. January of '74. 9 Q. What assignments did you have? What locations

10 throughout your career? 11 A. 12 Q. 13 A. 14 Q. 15 A. I was -And the time periods too, please. I was in Norfolk on a tender from '74 until '76. And if I could interject, what is a tender? A surface tender. It's a ship that repairs other

16 ships. I was part of a dive team there that was located at 17 NOB. 18 Q. 19 A. NOB? Naval Operations Base, which is now NAVSEA

20 Norfolk now, I guess. 21 Q. 22 A. Okay. And then after 1976? '76 I went to -- I was in training at Indian

23 Head, Maryland. I returned to Fort Story for a brief -24 about two years. 25 I deployed to Sigonella, Sicily for three years.

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00026 1 Q. 2 A.

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Leading petty officer. Where were you assigned? The first time I had -- well, Sigonella I was a

3 leading petty officer of the detachment for the last six 4 months I was there. Three to six months. 5 Q. 6 A. So in Sigonella -But now cyclical operations in Sigonella were

7 different, I think, than what you're talking about squadron 8 operations. We had squadrons there, but they were mostly 9 off the aircraft. The flight operations at Sigonella were 10 fairly steady. They were not cyclical as I recall. 11 Q. And how did you come to learn in being that high

12 a rank of the sort of episodic nature? 13 A. At the training unit I would say when I was at

14 the training unit at Fort Story. 15 Q. 16 A. And is Fort Story an air station? No. Fort Story is an Army base, and we had our

17 training there. Now, I was specifically a diving 18 instructor. So if I had been in another department I would 19 have been making, taking teams for training at Oceana 20 specifically, but I wasn't. I was -- I just, from talking 21 to other instructors, I guess would probably be my source. 22 Q. 23 A. Let's turn now to when you bought your house. 1984. 1984. I returned from Sigonella in

24 November of '82, December of '82. '83 I was with the 25 training unit. And I believe it was in the spring or early

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00027 1 summer of '84 that we bought the house. 2 Q. 3 A. Does August 15, 1983 ring a bell? Well, it does. I mean August -- was it '84?

4 August of '83 would have been -- you know, that could have 5 been the date that we bought the house, '83 -- no. '84 I 6 thought we bought the house. 7 Q. 8 A. Just so we get this locked down -I'd have to go back and look at the documents

9 that I gave the law firm, but I think it was '84. 10 MR. BRYANT: Would you mark this as DX 25. 11 MR. SWAIN: What are you marking it? 12 MR. BRYANT: 025. What is called I guess 25, 26, 13 and 27. And she will put the zero in. 14 A. Now, one of the documents I gave -- if I might

15 say this was the sales agreement. Because I remember being 16 asked these were the people you bought the house from. So I 17 know you have that. So whatever date was on there I guess. 18 But I thought it was in '84. 19 MR. SWAIN: Here it is. What he's handing you is 20 this one, "For each of the residential properties that are 21 the subject of the test case, please furnish the following 22 information: The date the test plaintiff or plaintiffs 23 acquired title to property." And then for A, you have 24 answered: "August 15, 1993." 25 MR. BRYANT: 1983, actually.

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What sort of military records do you have in

2 those boxes? 3 A. 4 Q. 5 A. My evaluations, my fit reps. Okay. And actually most of the information would be

6 included in those. 7 Q. Would you keep like leave statements and those

8 kind of things as well? 9 A. Not so much leave statements, no. Financial

10 records. 11 Q. 12 A. Exclusive to the military or all your -Pretty much all I had. Talking about your

13 monthly statements. 14 Q. So you kept all of that.

15 Now let's turn to the time period when you -16 from 1993 to 2003 when you rented the property? 17 A. Okay.

18 What was your first date that you mentioned? 19 Q. 20 A. 21 Q. 22 A. I thought you said 1993 to 2003 you were away? Yes. So you were renting property? Actually, 2002 is when I moved back into the

23 area, but I lived in a trailer at Fort Story for that period 24 of time, and I was commuting to Little Creek at that time. 25 Q. But when you first started renting the property,

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00067 1 can you chronologically -2 A.

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First started renting the property, I was

3 overseas. I was over in Sigonella and my wife took care of 4 that. In '93 approximately. 5 Q. 6 A. Who did you rent the property through? Through Remax. Dawn Crawford was the agent.

7 Remax. They are located right where the old credit union -8 well, you are not from here. But very close to here. 9 Across Independence Boulevard. 10 Q. I know you have answered this, but when did you

11 and your wife become separated? Was that '92? 12 A. '92. I mean unofficially separated. I left for

13 Sigonella. She stayed with the kids in Norfolk. Or in 14 Virginia Beach. 15 Q. 16 A. When did she move out of the house? When she built the new house, which was in -- I

17 believe she moved in January of '94. You'd have to ask her 18 again. Like I say, I was overseas at this time. I came 19 back to do training. So I was in the area intermittently. 20 But most of the time I was overseas and doing a lot of 21 travel. 22 Q. And do you recall the name of the tenants that

23 you had in your home? 24 A. I do, but I couldn't bring them up from memory.

25 I gave -- one name I know I gave to, with the rest of the

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00097 1 A. 2 Q. Pretty much the same.

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Now, going back to when you first moved in in the

3 early '80s? 4 A. 5 Q. Yes. Just a difference of aircraft, I think. Fair enough. And is the -- is it the same in

6 terms of the percentage that go directly over Carolina, 7 directly over your house, and directly over Rudee Avenue. 8 Is that roughly the same? 9 A. The distribution of patterns is approximately the

10 same. 11 Q. That's a much better way to phrase it.

12 What about the number of operations. How would 13 you compare that? 14 A. When, before -- well, let's see. Before -- I

15 didn't move back in until after the ROOSEVELT. Rephrase the 16 question. Or say the question one more time, please. Just 17 so I'm clear on it. 18 Q. The number of operations that you experience now

19 versus going back to historically the '80s, and up until -20 MR. SWAIN: What part of the '80s? 21 Q. 22 A. When you moved into the house? Well, the '80s were less frequent. I remember

23 less frequent operations in the mid '80s. 24 Q. 25 A. All right. In the '90s, again, we were there during the

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00098 1 first build up for the first Gulf war. Operations were 2 intense. Flights were frequent. If I were to guess, I 3 would say that probably the tempo of the flight operations 4 was the same from when I was there in '90, '91, to the time 5 I was -- when we were back in the house at that time period, 6 until -- and when I was just back off the ROOSEVELT. Or 7 when I moved back in in 2004. 8 Q. How would you compare the number of operations

9 when the air station and the rest of the military is ramping 10 up for the Gulf war, that time period, versus now? 11 A. 12 Q. 13 A. Oh, right now? Yes. I would guess that they would probably be a

14 little less. They are still fairly frequent, though. I 15 mean, I'm not sure why but they seem to be fairly frequent 16 at the moment. 17 Q. 18 A. 19 Q. 20 A. And what about in 2004 when you moved in? As I recall, they were still pretty frequent. Very similar to the Gulf war time period, or -Fairly frequent. You know, now we're getting to

21 really splitting hairs subjectively. It's still pretty 22 frequent. In 2004, I remember thinking to myself they 23 really, it's like ramping up for the war. Now, whether they 24 are still doing it because of what's going on in Iraq I 25 don't know.

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00100 1 exclusively to I think the time was 1991? 2 A. The time on the flight deck of the AMERICA is my

3 logical conclusion. Because I had very good hearing up to 4 that point in time. 5 Q. When was the hearing test that discovered the

6 loss? 7 A. That was in '95, '96 time frame when I was in

8 Sigonella. 9 Q. And did you have any subsequent hearing tests

10 after that? 11 A. Several, right. And the most recently being just

12 prior to discharge, or retirement. 13 Q. And was it -- was there additional loss in the

14 subsequent hearing tests, or was it roughly the same? 15 A. Not that I know of. I think of it was pretty

16 much constant. It was like a one-time -- because they put 17 me in the hearing conservation program after '95, '96 when 18 they first found out. 19 Q. So you don't attribute any of your hearing loss

20 to jet operations where you live now? 21 A. 22 Q. 23 A. I wouldn't be able to say that, I don't think. Do you believe that? No. I wouldn't believe it either. I don't

24 think. 25 Q. How would you compare the level of noise when you

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00101 1 are on the flight deck with that carrier, versus -2 A. 3 Q. 4 A. Carolina Avenue. -- versus living on Carolina? No comparison. Of course, I'm wearing double

5 hearing protection on the flight deck. And usually if I'm 6 doing anything, I'm doing this. 7 Q. And with that -- with that in mind, in terms of

8 having hearing protection when you're on the flight deck, 9 because that is the environment, that's the way you're 10 experiencing the noise, I think. 11 A. That's correct. When I was up on the flight

12 launch. 13 Q. When you are at Carolina Avenue you are not going

14 to have hearing protection on all the time I don't think? 15 A. Usually, no. Other than what you can get to your

16 ear, if it's very low. 17 Q. So with that relative comparison, how would

18 you -- how does one compare to the other? 19 A. I think you're talking apples and oranges if you

20 compare the flight deck of the carrier and the overflights. 21 But the intensity, a comparison of the intensity from what I 22 remember back in the '90s, when I had good hearing to the 23 absolute perceived increase of intensity that I have now 24 with worse hearing is extremely noticeable. I think that 25 was the track I was getting onto when I mentioned that I

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00102 1 have had a decrease in my hearing capabilities. But the 2 intensity is just so much more noticeable now. The 3 intensity, the level of sound. 4 MR. BRYANT: This would be a good time to take a 5 break I think. 6 (Recess) 7 THE DEPONENT: Craig and Jenny Howlin. 8 H-o-w-l-i-n. 9 MR. SWAIN: Who is that? 10 THE DEPONENT: They were people that rented 11 before I moved back in. 12 BY MR. BRYANT: 13 Q. Back when your wife decided to buy the house in

14 Chesapeake -15 A. 16 Q. Yes. -- why did she decide to go there with the family

17 instead of the family just staying -- she and the kids, why 18 didn't they just stay in the house? 19 A. Well, like I said, she was in a wheelchair. Had

20 been since before we were married. Her ultimate goal was to 21 get a house that was truly accessible. Now, the slab was 22 accessible; however, she couldn't get out to the back yard, 23 for instance. So she -- she had always wanted to design a 24 house for, specifically for her mobility issues, and I think 25 that is probably the main motivating reason.

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That's what I'm trying to get at. What would you

2 say? What would your response now be? 3 A. Well, I would have to say from the time that --

4 my experience of the intensity of noise level prior to the 5 arrival of the F-18s as opposed to when I moved back in in 6 2003, 2004 when they obviously were there, is vastly 7 different. 8 Q. Okay. And so you would -- so the sentence that

9 begins, the second sentence begins with "when, " and that 10 full sentence, would you just remove that? 11 A. 12 Q. I would modify it the way I told you. So how would it read then?

13 MR. SWAIN: He told you. 14 A. Let me see if I can put it in comprehensible

15 English. 16 Q. 17 A. We're still on these words; that's why. The intensity of the noise level that I currently

18 experience at my property since moving back -- associated 19 with my property in 2003, having moved back in and stayed in 20 the property in 2004, the intensity -- my perception of the 21 intensity of the noise level has vastly increased from the 22 time that I remember in the early '90s, when I last lived 23 there. 24 Q. 25 A. Okay. That part of it I understand. Yes.

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