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 21 22 23 24 25 DEPOSITION UPON ORAL EXAMINATION OF LOUIS G. FIGARI TAKEN ON BEHALF OF THE DEFENDANT VIRGINIA BEACH, VIRGINIA MARCH 9, 2006

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00005 1

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If at any point in time during this

2 morning you need to take a break, use the restroom, 3 water break, or anything else like that, please let me 4 know and we'll stop. 5 During the questions and answers this

6 morning, there may come a point in time where 7 Mr. Ferrebee may interject before you respond. If so, 8 please don't say anything; let Mr. Ferrebee go 9 forward. He'll make a comment for the record, then he 10 will either instruct you to go forward and answer the 11 question or not. 12 For the record, Mr. Figari, can you

13 please state your name and address? 14 A. Louis G. Figari. I live at 624 Secotan

15 Road, Virginia Beach. 16 Q. And, Mr. Figari, how long have you lived

17 at that residence? 18 A. We moved there December '91, I believe

19 it was. 20 Q. And prior to that address where did you

21 live? 22 A. Blue Pete Road. I'm not sure of the

23 number. 24 25 Q. A. How long were you at the -Salt Marsh Point.

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Case 1:01-cv-00201-VJW
00007 1 temporary. 2 A.

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Oh, gosh. I want to say less than a

3 year. I can't give you an exact. 4 Q. So it seems that the Carolina Avenue

5 address was in between the Blue Pete Road and the 6 Secotan from what you're describing? 7 A. Yes, while the house was being built in

8 Croatan. 9 Q. Okay. Prior to the Blue Pete Road

10 address, where did you live? 11 A. Spent some time at -- I want to say at

12 my in-laws when we first moved back down here. 13 936 Bingham Street. Again, that was approximately a 14 year. 15 16 17 Q. A. Q. So you're talking about 198 -'84. And where did you move from when you

18 came down here in 1984? 19 A. Prior to that I was living on Long

20 Island. 21 Q. Okay. It's my understanding that you're

22 a commercial airline pilot; correct? 23 24 25 A. Q. A. Yes. What airline do you fly? Continental Airlines.

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00012 1 flight tracks, the approaches and departure at Oceana 2 when you were flying back here in the late '70s out of 3 Oceana, can you describe briefly what you recall about 4 what the arrival and the departure flight paths were 5 at that time? 6 7 A. Q. Recall in what way? In terms of -- okay. Let's talk about

8 flying from -- let's say from Fentress, in terms of 9 doing -- completing FCLC practices at Fentress and 10 coming back to Oceana. Can you recall, what were the 11 rules of the road in terms of arrivals and departures 12 from -- let's say Oceana to Fentress? 13 A. The rules of the road? Basically, it

14 was just a VFR flight. 15 Q. Do you remember let's say the altitudes

16 in terms of departure from Oceana in terms of what the 17 climb rate was and how far you had to be -18 A. I can't recall the exact altitudes. The

19 climb rate was very rapid because the airplane was so 20 light. It was a right turn out, normally, if you were 21 taking off on Runway 5 and head directly to Fentress 22 field. 23 Q. And on arrivals back to Oceana from

24 Fentress? 25 A. Again, from what I remember, we'd just

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Case 1:01-cv-00201-VJW
00022 1 the time. 2 3 Q. A. Okay.

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They were just putting in the

4 improvements, which was a dirt road. 5 6 Q. A. Okay. And it was all vacant land. And I saw

7 the sign up for the individual who was, I guess, 8 selling the lots, and I just called up, went down, 9 started talking to him and tried to work out a deal. 10 Q. Okay. Do you recall what you paid for

11 the lot back at that time? 12 A. No. I would be pulling it out just to

13 give you a number. I can't give it to you now, no. 14 Q. In terms of the -- you had a home

15 constructed on that -- pretty much did you have -- was 16 it a custom built home to the point where you had 17 enough say as to what you wanted in that home? 18 19 A. Q. Yes. Okay. With regard to the Secotan home,

20 before it was built, at that address, what was -- what 21 was the experience that you at least observed of the 22 tactical jets that were flying in and out of Oceana in 23 terms of the noise impacts, let's say, with regard to 24 Secotan? 25 A. What home are you talking about?

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Case 1:01-cv-00201-VJW
00023 1 2 Q. Secotan.

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Before you purchased the lot in terms of

3 what did you observe at that address, at that lot, 4 basically, at that point? 5 A. Well, you could observe over-flights.

6 Not direct over-flights. 7 8 9 Q. A. Q. Okay. Seldom over -- directly over-flighting. Did you talk to any other -- did you

10 talk to any other residents in the Croatan area before 11 you purchased that lot in terms of jet noise or noise 12 impacts? 13 14 A. Q. No. You said while the house was being built

15 you had to live at a temporary address on Carolina 16 Avenue? 17 18 A. Q. Carolina Avenue. How long did the house take to be built,

19 do you recall? 20 21 A. Q. Approximately six months. Was the address at Carolina Avenue an

22 apartment or was that a home? 23 24 A. Q. That was a home. In terms of when you were looking for

25 this temporary residence, were you anywhere particular

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00024 1 in terms of finding something close to where you were 2 building your home or did it really even matter to 3 you? Why did you settle on the Carolina home? 4 A. Most rentals wanted a full year; I was

5 able to get this for a six-month time frame. 6 Q. Okay. Let's go -- the six -- the time

7 period that you were living at the Carolina Avenue 8 address, in terms of your noise experience that you 9 felt there, in terms of -- again, let's start with the 10 interior environment; radio and televisions. 11 12 13 A. Q. A. I don't recall. Were you raising -I don't recall any noise problems. I

14 don't recall any. 15 Q. How about telephones where you had to

16 pause your conversations? 17 18 A. Q. I don't remember any. Okay. When you moved into the Secotan

19 Road, I think we said it was approximately -- well, by 20 the time the house was constructed and you got to 21 closing and you moved in, what year was it? 22 A. December; I've always gotten it confused

23 which year. I believe it was December of '91. 24 Q. When you were living now at the Secotan

25 address, again, now let's go toward -- again, your

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Case 1:01-cv-00201-VJW
00025 1 noise experience at that home now. 2 3 A. Q. Um-hum.

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When you initially moved in, and,

4 basically, from the time you moved in until the 5 present day, describe -- let's go through time periods 6 when you may have observed some noticeable change. 7 8 9 10 11 A. Q. A. Q. A. Initially, it was not a problem. Okay. Noise was not a problem there. Okay. When do you think it changed? I know when it changed; the F-18s

12 started flying. 13 Q. Okay. So can you estimate what year

14 we're talking about? 15 A. Oh, gosh. Approximately '88/'89 time

16 frame. 17 18 19 Q. A. Q. Okay. I'm sorry, '98/'99. So prior to '98/'99, can you recall what

20 kind of -- what types of jets were pretty much flying 21 in and out of Oceana? 22 23 A. Q. A-6 and the F-14. Okay. Prior to 1998 and 1999 when the

24 F-18s arrived at Oceana -- I'm going to show you 25 something we'll mark as the next exhibit, which is

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Case 1:01-cv-00201-VJW
00027 1 2 A. Q. No, I did not.

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Okay. There's a couple things in the

3 letter I'd like to ask you about. 4 From the period that you moved into the

5 home in Secotan, from '91 until about 1998/1999 when 6 you noticed a noticeable difference in the noise 7 impacts, at that point in time, during that period '91 8 to about '98/'99, did you ever file a noise complaint 9 with Oceana? 10 11 A. Q. I can't recall if I did or not. You mentioned in the letter, However --

12 and this as of October 31, 1997 -- however, we often 13 have jets stray over when the pattern gets a little 14 busy. What was going on or how often was that -- when 15 you say "often," is this a daily? Was it daily or 16 every other week or -17 A. That's kind of hard to say. During busy

18 operations at Oceana Air Station, whenever they were 19 doing that, when planes were flying on a regular 20 basis, it would often happen. If they weren't having 21 any operations, obviously it wasn't happening. I 22 can't tell you if it was every day or every other day. 23 Q. Well, between '91 and '98, were the jets

24 from in and out of Oceana, were they directly 25 over-flying your home back then during that period of

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Case 1:01-cv-00201-VJW
00028 1 time? You said occasionally. 2 A.

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Again, Oceana -- I mean Croatan is not

3 in the pattern, supposedly not in the pattern. 4 Occasionally, when numerous airplane would show up in 5 the pattern, they would fly over the house. 6 Q. Okay. When you say -- okay. On those

7 occasions when it was over-flying the house, what were 8 you estimating the altitude to be? 9 10 A. Q. Approximately 800 feet. Okay. The last sentence in that second

11 paragraph, Additionally, the F-18 is by far the 12 noisiest aircraft to ever fly around here. 13 As of October 31, 1997, you made that

14 statement in the letter. What were you basing that 15 statement on? 16 A. Articles I had been reading about the

17 airplane. 18 19 20 Q. A. Q. Articles you were reading from -Well, just in the newspaper. Were you familiar enough with what type

21 of engines were in the F-18 and thrust ratios? 22 23 A. Q. No. Okay. When you said you noticed it, the

24 noise change in and around your home in Secotan, it 25 was around '98/'99. Can you recall what the occasion

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00029 1 was? Were you indoors? Were you outdoors? Or what 2 time of day was this? 3 A. No; whenever over-flights would occur,

4 whether I was indoor or outdoor. 5 Q. Let's go back and try to describe; with

6 the arrival of the F-18 in the '98/'99 time frame, 7 what was -- say the impacts on your indoor, let's say 8 with the radio and television. Can you describe, were 9 there times when you had to raise up the volume -10 11 12 13 -14 15 A. Q. Yes. -- you had to stop and pause to let the A. Q. Yes. -- on the radio and television? What about with telephone conversations

16 jets pass by? 17 18 A. Q. Yes. When you were outdoors in '98/'99, can

19 you -- when you were outside, could you tell a 20 noticeable -- could you determine what jets were 21 flying in and around your home, what type of jets were 22 flying? 23 24 A. Q. Yes. With the F-18, what altitude would you

25 say that they were flying in and around your home,

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Case 1:01-cv-00201-VJW
00030 1 could you recall? 2 3 A. Q.

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About 800. 800 to 1000 feet. Were they directly over-flying your home

4 at least with the F-18s or were they off to the sides 5 in the distance? 6 A. It would vary. Sometimes they would be

7 well inside, flying over my previous house probably in 8 Salt Marsh. And other times they would be on the 9 outside of Croatan, over on the east side, sometimes 10 over top. 11 Q. Obviously -- I should have asked you

12 this question, too: In terms of when you started 13 flying for People Express and then you obviously 14 worked for Continental, when you moved to Virginia 15 Beach in '85 -- say the '91 time frame, your first 16 residence, how often were you at home in Virginia 17 Beach? What was your work schedule back in that time 18 period? 19 A. Probably, on average, three-and-a-half

20 to four days a week I might be out of town. 21 Q. In terms of the three to four times a

22 week you were out of town, was there a specific type 23 of schedule -- you were always out of town on weekdays 24 but home on weekends -- or did it vary? 25 A. It was random. It varied.

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00037 1 A.

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Not the commissary. I do use the

2 exchange. 3 Q. How would you describe your current

4 living conditions right now in terms of your home on 5 Secotan Road in terms of noise impacts? Is it 6 tolerable? Intolerable? 7 A. It's tolerable until an F-18, in

8 particular, flies over. 9 Q. And this is what I'm trying to figure

10 out; when you say when they fly over, has that become 11 a regular, frequent practice on a daily practice or is 12 it basically the stray jet that you were saying? 13 A. Again, we are not in the pattern, so,

14 what happens is when one stray jet normally flies 15 over, there's several stray jets that fly over. 16 17 18 Q. A. Q. Okay. It's not usually just one. Has that -- does that happen on a daily

19 basis, to the best of your knowledge? When you're 20 home. When you're home. 21 A. When I'm home, I wouldn't say a daily

22 basis, no. 23 Q. How often would you say that happens in

24 a week then? 25 A. Several times.

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