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 4 5 CAROL AND ROBERT TESTWUIDE, ) et al., ) 6 Plaintiffs, ) ) 7 v. ) No. 01-201L ) Judge Victor J. Wolski 8 THE UNITED STATES OF AMERICA, ) ) 9 Defendant. ) 10 11 12 13 14 15 16 17 18 19 20 Appearances: 21 22 23 24 25 U.S. DEPARTMENT OF JUSTICE By: STEVEN D. BRYANT, ESQUIRE Counsel for Defendant HOFHEIMER/FERREBEE, PC By: JACK E. FERREBEE, ESQUIRE Counsel for Plaintiffs DEPOSITION UPON ORAL EXAMINATION OF BONNIE YOUNGBERG TAKEN ON BEHALF OF THE DEFENDANT VIRGINIA BEACH, VIRGINIA JANUARY 11, 2006

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00004 1 talk over each other. I have a tendency to do that 2 myself, but we'll try to keep a check on that because 3 it's important. If we're both talking at the same 4 time, she can't take down what we're both saying. 5 The other thing is I'll obviously be

6 asking you questions today. If you don't understand a 7 question I ask or if you need clarification, please 8 let me know. 9 If you need a break at any time, just

10 let me know. We can take a break, just say the word; 11 I may not think of it, so I'll rely on you to let me 12 know. 13 Any other questions preliminarily at

14 this point? 15 16 A. Q. No. Okay. If you could just state your

17 name, address, and occupation, please. 18 A. Bonnie M. Youngberg, 2801 Shearwater

19 Cove, Virginia Beach 23454, and I am a licensed 20 professional counselor. 21 22 23 24 25 Q. A. Q. A. Q. And what kind of counselor are you? Psychotherapy. Okay. Mental health. Any particular specialty for that?

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00011 1 2 Q. A. Approximately.

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-- several years until I bought at

3 South -- Southall Quarter. 4 Q. Is River Cove still in the Hilltop

5 area? 6 7 8 A. Q. A. It's all in the same zip code. All in the same zip code. That's not in Hilltop. River Cove is

9 out by Heron's Cove. 10 Q. Okay. Laurel Cove and Southall Quarter

11 are both in the Hilltop area? 12 13 A. No? No. I don't think Laurel Cove would be

14 in the Hilltop area; it's on Great Neck Road. 15 Q. So all of these places are in the same

16 zip code? 17 18 19 20 21 22 23 A. Q. A. Q. A. Q. Yes. Which ones are in Hilltop? Just Southall Quarter. Just the current one? That's not my current one. That's not the current one. So you were in River Cove, the condo,

24 from '91 to we'll say about '97, roughly? 25 A. Yes.

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And then the Southall Quarter from '97

To the early 2000s. I think I moved to

4 my current residence in 2002, but I would have to look 5 up the records to be sure. 6 7 Q. That's fair enough. So your current house, you said that

8 was -- I forgot the -- Sea something? What was name 9 of the road again? The current house. 10 A. Oh. It's Heron's Cove. I have circled

11 back to Heron's Cove where I rented; now I own. 12 13 14 Q. A. Q. Now you own there? Um-hum. Okay. And the Southall Quarter

15 location, what is -- do you remember the name of the 16 street you lived on? Or the address would be even 17 better. 18 19 20 21 A. Q. A. Q. Wow. I really don't. That's fine. I'm sorry. Now, the condo at River Cove, do you

22 recall the street that it's located on or the address? 23 A. That's where I live now, at

24 2801 Shearwater. 25 Q. 2801 Shearwater. I thought it was

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And you moved there, again, that was in

2 2002, roughly? 3 A. It might be 2003. This is 2006. I've

4 been there two-and-a-half years. 5 Q. Okay. Is there a reason why you bought

6 the house -- well, why did you sell the house at 7 Southall Quarter? Why did you move out of that 8 house? 9 10 11 12 A. Q. A. Q. It was too noisy. Because of the jet noise? Yes. Was that the only reason or were there

13 any other reasons? 14 15 A. Q. Well, no. It was a nice place. How many bedrooms and bathrooms was

16 that, was that property? 17 18 19 20 A. Q. A. Q. That was two master bedrooms. Okay. And bathrooms? Oh. Bathrooms, two-and-a-half. Okay. And what other amenities about

21 that property led you to buy it initially? 22 23 24 A. Q. A. It was all brick. Okay. The neighborhood was a very nice

25 neighborhood of -- shall we say mature adults. Very

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00026 1 louder. They are much louder. So I cannot be outside 2 when those jets are flying. 3 Q. And when you say they are much louder,

4 are they much louder than when you were in Southall 5 Quarter or about the same in terms of the loudness? 6 A. I think they are louder. I think they

7 are louder. 8 9 Q. A. Louder now than they were then? Yes. But they would fly very low over

10 Hilltop, over the Southall Quarter. You could look 11 directly up and see the belly of the plane. 12 Q. And speaking of that, did you -- can you

13 estimate the altitude of the flights over the Southall 14 Quarter? 15 16 17 18 A. Q. A. Q. I would have no way to do that. Fair enough. Yes. With that said, if you can answer, are

19 the flights over the -- your current location, do they 20 appear to be the same altitude, you know, irrespective 21 of whether you can judge what the altitude is? 22 A. No. They are not quite as low to the

23 ground. Okay? So they seem to fly a little bit 24 higher than what I experienced at Southall Quarter. 25 But they are loud and they will drive me in the house,

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00027 1 and I can't hear the TV, and talking on the phone is 2 difficult. 3 Q. And is that true, the talking on the

4 phone, if the windows are closed -5 6 A. Q. Um-hum. -- and the doors are closed and

7 everything else? 8 9 A. Q. Um-hum. Do the flights, are they directly over

10 your condo? 11 A. Sometimes they are, but most of the time

12 they are not directly overhead. They are close 13 enough, I mean, they are just slightly south. 14 Q. Okay. And when you were in the Southall

15 Quarter location, were those directly over your 16 townhouse? 17 18 A. Q. They were often directly overhead. And when they were directly overhead at

19 that location and you were inside, what was -- what 20 sort of impacts in terms of use of your house -21 A. Well, again, you couldn't hear the TV,

22 you couldn't talk on the phone -- you couldn't talk on 23 the phone; you would just have to stop and wait until 24 the plane went over and then you could resume your 25 conversation.

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People on the other end of the phone

2 could hear the plane over my townhouse. So it 3 interrupted that. 4 Sometimes they flew at night, and that

5 was horrible. They would fly way past my bedtime. I 6 would go to bed at 10 or 10:30 and they'd still be 7 flying, and there was no way to get any sleep until 8 they stopped. 9 10 Q. A. And what time would they stop? Well, it would vary a lot. I mean,

11 sometimes they stopped by midnight, sometimes they 12 flew past midnight. It just varied. There was never 13 a consistent pattern that you could predict. 14 Q. And how often would they fly at night

15 past your bedtime? 16 A. All I can say is too often. I don't

17 know. 18 Q. Do you know if it would -- if it were

19 once a month or once every couple months? 20 A. You know, I tried to keep records for a

21 while, and I think I did keep records for a while, and 22 it was just so unpredictable. 23 Like one month they flew a lot and I was

24 writing something down frequently, and then another 25 month, you know, just a few times. And, so, the

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It varies. Here's what I think -- where

2 were we? Okay. I'm over here. 3 4 5 Q. A. T. Yes. I think they come out and curve over

6 here. See, this is Chesopian Colony, so they curve 7 over here. 8 Q. And when you're saying "curve over

9 here," you are sort of doing it -10 A. And they go pretty close to N. They go

11 pretty close to N. 12 Q. And what I'm sort of getting at, though,

13 is have you ever sort of been in that location right 14 around N in your car or wherever where you're seeing 15 them fly directly over you, or are you estimating that 16 that's where they turn based on sitting on your 17 deck? 18 19 20 A. Q. A. Sitting on my deck, yes. Okay. Now, they have been directly overhead

21 when I have gone to the Lynnhaven Mall. 22 Q. And the Lynnhaven Mall is -- I used to

23 know where the Lynnhaven Mall was. Can you identify 24 it? 25 A. Well, let's see if I can find it.

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00078 1 did it increase and then go back down or did it just 2 steadily increase from when you moved in there? 3 A. It's never seemed to have gone down.

4 It's so hard to tell you these things because it's 5 episodic, and, so, there are times when it's peaceful 6 and then there are times when it's just very 7 problematic. But, overall, it has increased in both 8 the number of times when I'm disturbed by the jets and 9 the loudness of the jets has certainly increased. 10 Q. And has it -- has it plateaued now, is

11 it at its highest point, roughly speaking, now or -12 or when did it get to the point where it was sort 13 of -14 A. I don't know. I'd love to know if it

15 has plateaued. 16 Q. So I'm gathering from that comment that

17 it's still increasing in your mind? 18 A. It seems that way, but I don't know if

19 I'm just more sensitized to it and I've had enough, 20 you know, you sort of hit the threshold where you just 21 don't want to do this anymore. 22 Q. Did anything in particular happen when

23 you moved into the Southall Quarter location where you 24 sort of looked up and said, Wow, this is -- this is 25 different? Did something --

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Yes. The jets were flying pretty

2 directly overhead, and I remember one time when my 3 grandson was visiting, and I took him to the little 4 neighborhood park. We couldn't be in the park. We 5 had to go back home; it was just -- it was way too 6 loud to be outdoors. 7 Q. Do you recall how old your grandson was

8 at that time? 9 A. Well, he was playground-age. He

10 probably would have been maybe two; he's seven now. 11 12 13 14 Q. A. Q. Was he your son's son? Yes. Okay. Congratulations. So he was -- he was a toddler? He was

15 two years old? 16 A. Yes. I'm -- you know, we went to the

17 park many times, whenever he would come visit. But 18 there were a couple of times when we had to go back. 19 Q. Okay. So that would be five years ago,

20 so roughly 2001. 21 22 23 24 25 A. Q. A. Q. But you moved in there -- hang on. In '97. -- in '97. That's the one date I'm sure of. Yes; Thanksgiving.

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