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

Case 1:01-cv-00201-VJW

Document 173-43

Filed 05/26/2006

Page 1 of 12

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 CARL HELVIE TAKEN ON BEHALF OF THE DEFENDANT VIRGINIA BEACH, VIRGINIA JANUARY 12, 2006

Helvie, Carl 01.12.06

Page 1

Case 1:01-cv-00201-VJW
00003 1

Document 173-43

Filed 05/26/2006

Page 2 of 12

Deposition upon oral examination of

2 CARL HELVIE, taken on behalf of the Defendant, before 3 Kerry E. Zahn, Registered Merit Reporter, Certified 4 Realtime Reporter, a Notary Public for the 5 Commonwealth of Virginia at large, taken pursuant to 6 notice, commencing at 2:30 p.m. on January 12, 2006, 7 at the offices of Hofheimer/Ferrebee, PC, 1060 Laskin 8 Road, Virginia Beach, Virginia. 9 10 CARL HELVIE was sworn and deposed on

11 behalf of the Defendant as follows: 12 13 EXAMINATION

14 BY MR. BRYANT: 15 Q. Good afternoon, Mr. Helvie. My name is

16 Steve Bryant with the Department of Justice. I'm 17 going to be asking some questions today. If, first, 18 you'll state your name, address, and occupation. 19 A. Carl Helvie. 9 Riley's Way, Hampton,

20 Virginia 23664, Professor Emeritus - Old Dominion 21 University. 22 Q. Have you ever been deposed before,

23 Mr. Helvie? 24 25 A. Q. No. Sort of the ground rules of it is we

Helvie, Carl 01.12.06

Page 3

Case 1:01-cv-00201-VJW
00005 1 2 Q. A. Is it north?

Document 173-43

Filed 05/26/2006

Page 3 of 12

Hampton. Well, I live north of Hampton.

3 I live on a little island called Grand View, but it's 4 a Hampton address and it would be -- it's toward 5 Richmond from here, but it's just on the other side of 6 the water. 7 8 9 10 11 12 13 14 A. Q. Q. A. Q. A. Q. And what body of water is that? What body of water -If you don't know -I don't know. That's fine. Why did you move to that house? Because of the jet noise. That's the reason you moved; any other

15 reason? 16 17 A. Q. Definitely not. I loved my house. All right. Let's talk about your

18 previous residence. 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Okay. What was that address? That was 421 Lake Drive. Okay. Virginia Beach 23451. And how long did you live there? Twenty -- I believe it was 26 or 28

Helvie, Carl 01.12.06

Page 5

Case 1:01-cv-00201-VJW
00006 1 years. 2 3 4 Q. A. Q. A long time. Right.

Document 173-43

Filed 05/26/2006

Page 4 of 12

Do you recall approximately the year

5 that you moved in? Was it about -- was it about '72 6 or something? 7 8 A. Q. It was, yes, right. I'm going to ask you -- I have a map

9 here, it's DX 10, and I'm going to ask you to point 10 out for me -- here's a pen -- where 421 Lake Drive is. 11 If you could hold it down so I could see. 12 A. Let's see. Let's see. I lived right

13 here. 14 Q. If you could do me a favor and next to

15 that write the letter B and the number 1. B1. 16 17 18 A. Q. (Complying) Okay. Thank you. What I'm going to do is write on the

19 bottom of this, and I should have been doing it the 20 whole time, but I'm going to write your name, Helvie, 21 and then B1, and Lake Drive for that address. 22 So you lived in that location for

23 approximately 28 years or so? 24 25 A. Q. Right. Yes. Did you live anywhere else in Virginia

Helvie, Carl 01.12.06

Page 6

Case 1:01-cv-00201-VJW

Document 173-43

Filed 05/26/2006

Page 5 of 12

00013 1 with jet noise in your house or being outside of your 2 house -3 4 A. Q. No. -- when you rented that property for a

5 year? 6 7 A. Q. No. When you bought the property at Lake

8 Drive, which was several blocks south of there, you 9 moved in there in 19 -10 11 12 13 A. Q. A. Q. '7 --- '72? Right. And did you experience any flight

14 operations/jet noise when you moved into that house? 15 A. Occasionally, for the first -- well, the

16 last two years is when it got very, very bad, but 17 before that it was just occasionally. Not very often. 18 Q. Okay. So the Lake Drive home, when you

19 say you would experience flight operations 20 occasionally, up until -21 A. Up until the last couple of years,

22 right. 23 Q. For that fairly long period of time, 26

24 years or so? 25 A. (Nodding)

Helvie, Carl 01.12.06

Page 13

Case 1:01-cv-00201-VJW
00017 1 Q.

Document 173-43

Filed 05/26/2006

Page 6 of 12

That 26-year period again before the

2 last two, did you hear flight operations while you 3 were inside your house ever? 4 5 A. Q. I don't remember that either. You don't remember ever being on the

6 phone and having to stop a conversation because of 7 flights? 8 A. The only thing I remember is that, you

9 know, when I discussed with my neighbors, they always 10 said that we were not in the flight path then. And, 11 so, I didn't have the loud, loud noise right over my 12 house. 13 Q. Well, when you say you discussed it with

14 your neighbors, I'm inferring that that was in the 15 last two-year period when things changed; is that 16 correct? Or would you have had that conversation that 17 you're now -18 A. I think we had a conversation, you know,

19 with neighbors on either side of me before, because 20 the noise was in the distance and they had said we 21 weren't in the flight path. 22 23 Q. A. I see. Okay. I think. But it could have been after,

24 but I think we had had that conversation before. 25 Q. Do you know what neighbor that would

Helvie, Carl 01.12.06

Page 17

Case 1:01-cv-00201-VJW
00021 1 that 26-year period; is that correct? 2 3 A. Q.

Document 173-43

Filed 05/26/2006

Page 7 of 12

I don't remember ever seeing them; no. Okay. Let's now turn to the last two

4 years you were in the house, and you said you -- I 5 believe you sold that house in -- or you moved into 6 the other house in December of 2000? 7 8 A. Q. I believe that was when I moved, right. And did you move directly from the Lake

9 Drive house to the Hampton Roads (sic) home? 10 11 A. Q. Yes. So when you say the last two years, you

12 would be talking December 1998 through December 13 2000? 14 A. I'm not definite on the time, you know,

15 but it -- it was a year or two years. It was that 16 last period when I lived in the house, and I -- I 17 said, I've got to get away from this, I can't take it 18 anymore. 19 Q. Okay. And in that period of time, when

20 did you first notice a change, what event, what 21 happened where you -- how did you first notice it, 22 that something was different? 23 A. Well, I think maybe the first time I

24 noticed it was when someone flew over and I thought 25 they were going to hit the tree in my front yard

Helvie, Carl 01.12.06

Page 21

Case 1:01-cv-00201-VJW

Document 173-43

Filed 05/26/2006

Page 8 of 12

00022 1 because they were just above the tree when they went 2 over. And you could, you know, see the people in the 3 planes flying over, they were so low and so loud. 4 Q. And do you remember what time of year

5 this was? 6 7 A. Q. No. And you say there was -- there was a

8 tree in your yard? 9 10 11 A. Q. Two big oak trees in my front yard. Oak trees. And did the aircraft graze the top of

12 the trees or just over? 13 A. They were just over the top of the

14 trees. 15 Q. And when you say "just over," are we

16 talking a few feet, a hundred feet? 17 18 19 20 A. Q. A. Q. Oh, a few feet. Oh, just over? Right. Okay. Did the -- did the trees sway and

21 bend as a result of the jets flying over? 22 A. I don't remember that. I don't remember

23 whether they did or not. 24 Q. But you remember specifically the

25 aircraft flying --

Helvie, Carl 01.12.06

Page 22

Case 1:01-cv-00201-VJW
00023 1 2 3 4 A. Q. A. Q. Right.

Document 173-43

Filed 05/26/2006

Page 9 of 12

-- just a few feet over the trees? Right. Right. But you don't recall what else happened

5 in terms of -6 7 A. Q. No. -- did any tree limbs fall out of the

8 tree or anything of that nature? 9 A. Tree limbs fell, but I don't know if

10 they were related to that or if they just fell because 11 it was a very, very old tree. 12 Q. Well, I mean in terms of at the time

13 that that aircraft was flying -14 15 16 17 A. Q. A. Q. Oh, you mean when it was flying? Yes. I went in the house, so I don't know. You didn't observe any tree branches

18 fall or anything of that nature? 19 A. You mean when the plane was going over?

20 No. Because once I saw the plane right up on top, I 21 went in the house. 22 Q. Okay. And what did you do next when you

23 went in the house? 24 25 A. Q. Held my ears. Okay.

Helvie, Carl 01.12.06

Page 23

Case 1:01-cv-00201-VJW
00025 1 that had come. 2 3 Q. A. Okay.

Document 173-43

Filed 05/26/2006

Page 10 of 12

But it also was obvious that the flight

4 pattern had also changed. 5 Q. Because these flights were now over your

6 house? 7 8 9 10 A. Q. A. Q. Right. And they weren't before? No. So if it became a common occurrence for

11 the flights -- for the jets to fly over and sort of 12 graze over the top of that oak -- those two oak trees, 13 I think you said? 14 15 A. Q. Right. -- about how often did you see that

16 happen? 17 A. I don't know how often they were over

18 the trees, but I know that it was a daily occurrence, 19 the noise, daily and nightly, because there were 20 nights when there was no way to get rid of the noise. 21 And then I would go to school the next day and try to 22 teach, and I was tired. 23 Q. But sort of going back to the -- so

24 there were other operations that weren't that low -25 A. Right.

Helvie, Carl 01.12.06

Page 25

Case 1:01-cv-00201-VJW
00026 1 2 Q. -- where the trees --

Document 173-43

Filed 05/26/2006

Page 11 of 12

What would be -- in relation to that

3 level, the other operations that you had experienced 4 daily and nightly, what altitude would those flights 5 be? 6 A. A lot of times I was inside my house, so

7 I didn't go out to see how high they were. I only 8 knew that they were very loud and that the noise 9 was -- you couldn't carry on a conversation. I 10 couldn't talk on the phone. I couldn't catch 11 television. I mean, I couldn't concentrate on 12 developing my classes, or research papers, or anything 13 else. It was just too noisy. 14 Q. And did you ever -- were you ever

15 outside and observing flights coming over your 16 house? 17 A. Sometimes very low, right, and sometimes

18 a little bit higher. And there were a couple times 19 when it looked like fire was coming out of the planes 20 and I was afraid it was going to set the ground on 21 fire or catch the house on fire. I don't know what 22 that was. 23 24 Q. A. Okay. And, also, I noticed that my roof got

25 very in dark color, and I don't know if that was from

Helvie, Carl 01.12.06

Page 26

Case 1:01-cv-00201-VJW
00036 1 2 3 4 5 Q. A. Q. A. Q. Okay. The house I sold. Okay.

Document 173-43

Filed 05/26/2006

Page 12 of 12

So there was still value in the house. Okay. So, then, what do you mean by the

6 loss of the house? What exactly do you mean by 7 that? 8 A. By the loss of the house, I mean that I

9 was forced out of my house because of jet noise, a 10 house that I had that was paid for, that was secure 11 primarily from hurricanes. I never had a problem with 12 hurricanes. A house that I didn't have house payments 13 because, as I say, it was paid for, I was very 14 comfortable in. I was comfortable in my neighborhood. 15 I knew everyone there. I was President of the civic 16 league. I was very happy in my neighborhood. But I 17 was forced out of the house because of the jet noise. 18 I could not stand the jet noise anymore. 19 Q. Okay. And in terms of the compensation

20 you're seeking, what would happen if there is to be 21 recovery in this case would be any diminution in 22 value, property value, of the house. 23 A. What do you mean? I don't know what

24 "diminution" means. 25 Q. A reduction --

Helvie, Carl 01.12.06

Page 36