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

Case 1:01-cv-00201-VJW

Document 173-35

Filed 05/26/2006

Page 1 of 17

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 JEFFREY McCREARY TAKEN ON BEHALF OF THE DEFENDANT VIRGINIA BEACH, VIRGINIA JANUARY 13, 2006

McCreary, Jeffery 01.13.06

Page 1

Case 1:01-cv-00201-VJW

Document 173-35

Filed 05/26/2006

Page 2 of 17

00004 1 you're done responding before I ask another question. 2 Please also articulate your answers

3 because nods of the head are not going to be reflected 4 when she's typing. 5 Also, if you need a break at any time,

6 please let me know. And if you don't understand a 7 question that I ask, please ask me to rephrase it and 8 I'll be happy to do so. Okay? 9 10 A. Q. Okay. All right. Please first state your

11 name, address, and occupation. 12 A. My name is Jeffrey Earl McCreary. I

13 reside at 804 Lord Leighton Court in Virginia Beach, 14 and I'm an information specialist of the public 15 library system at the oceanfront branch. 16 Q. Okay. And how long have you lived at

17 Lord Leighton Court? 18 19 20 A. Q. A. Since November of '96. And where did you live before that? In Cardinal Estates, 2901 Finch Avenue.

21 I moved there in August of 1976. 22 Q. Okay. How long have you lived in

23 Virginia Beach, since '76? 24 25 A. Q. October/November '76. What is the address that you lived in in

McCreary, Jeffery 01.13.06

Page 4

Case 1:01-cv-00201-VJW
00008 1 2 Q. A. The Learys?

Document 173-35

Filed 05/26/2006

Page 3 of 17

I know Mr. Leary, who is a library

3 patron and picks up his books; that's about it. 4 Q. Michael Leary, or you're just not

5 sure? 6 7 8 9 10 A. Q. A. Q. I think it's Michael. I'm not certain. We'll go back to that. And the Ryans? No. For Michael Leary, have you had any

11 conversations with him other than -12 13 14 A. Q. A. No. -- checking out a book? No. Just exchanging books through the

15 drive-up window. 16 Q. And it's, again, just a reminder, it's

17 important -- I tend to do this, too, to anticipate 18 what the person is going to ask and go ahead and 19 answer it. Just please be sure to wait until I'm 20 finished with the questions so she can take them down. 21 22 A. Q. Okay. I'd first like to talk about the Lord

23 Leighton Court residence. When you moved in in 24 November of '96, were you aware that Naval Air Station 25 Oceana was in existence?

McCreary, Jeffery 01.13.06

Page 8

Case 1:01-cv-00201-VJW
00011 1 Q.

Document 173-35

Filed 05/26/2006

Page 4 of 17

Okay. And when you said -- I believe

2 you said a few months it started getting closer and 3 closer? 4 5 A. Q. Um-hum. So would that have been sometime in

6 early 1997? 7 A. Well, we moved in in November of '96. I

8 couldn't pinpoint the exact time, sometime, I would 9 imagine, mid 1997. 10 11 12 13 14 Q. A. Q. A. Q. Okay. Towards the end of summer. Sometime in early to mid 1997? Yes. And how close did they -- did the

15 flights start approaching your house? 16 A. I didn't keep a record, where whereas

17 they used to be farther away to be able to be within 18 sight, they are now flying closer to where they are 19 flying overhead now. 20 21 22 Q. A. Q. Directly over your property? Sometimes they fly directly overhead. And these direct flights over the

23 property, did that start whenever it happened in '97, 24 whether it was the beginning of '97 or the mid part of 25 '97?

McCreary, Jeffery 01.13.06

Page 11

Case 1:01-cv-00201-VJW
00012 1 A.

Document 173-35

Filed 05/26/2006

Page 5 of 17

It was incremental. It was farther away

2 in '97; I would think probably in '98 they were 3 closer; '99 a little closer; and today they are 4 directly over our house. 5 Q. When did they start flying directly over

6 your house, approximately? 7 A. I couldn't say the exact time frame.

8 Somewhere in the range of 1999, summer of '99, I would 9 think. I'm trying to think of outdoor activities. 10 Q. And that's what I was going to ask you

11 is why do you say summer of 1999? Did something 12 happen? 13 A. We do a lot of gardening. We have boy

14 scout troops. We have outdoor cookouts. We have 15 gatherings, and I remember the summer of '99 is when, 16 now, we would have to go inside because it got too 17 loud, too bothersome. 18 Q. So did you have some particular boy

19 scout event or barbecue or something that you recall 20 from that summer, that year, that sparks your mind? 21 A. I think it was an end of school party

22 and my children had some friends over, and they came 23 inside because it was too loud. 24 Q. And at that time they were flying

25 directly over your house?

McCreary, Jeffery 01.13.06

Page 12

Case 1:01-cv-00201-VJW
00013 1 2 A. Q. Overhead, yes.

Document 173-35

Filed 05/26/2006

Page 6 of 17

And the flights had not, as far as you

3 know, had not done that before? 4 A. Farther away. The same apparent

5 pattern, but never overhead. But just kept getting 6 closer. And I remember summer of '99, now they are 7 flying overhead. 8 Q. Summer of '99 they started flying

9 overhead on a regular basis? 10 11 A. Q. Yes. Okay. So just to clarify, when you

12 first moved in in '96, a few to several months 13 thereafter, they started -- you saw jets flying 14 farther away, a mile or two, and then they started 15 coming closer in perhaps mid '97? 16 17 A. Q. Yes. And then '98 closer -- was it sort of

18 closer each year? 19 A. Each year. We tend to not notice

20 because they are there, but we tend to notice when you 21 can't be outside any longer -22 23 24 Q. A. Q. Okay. -- when things start to bother you. Do the flights -- well, the flights back

25 in '97, if you could, on the map here, there's F1 just

McCreary, Jeffery 01.13.06

Page 13

Case 1:01-cv-00201-VJW
00018 1 2 3 A. Q. A. At the time, yes. And talk on the phone?

Document 173-35

Filed 05/26/2006

Page 7 of 17

If we were not anywhere under the flight

4 pattern. If the other person was under the flight 5 pattern, they would have to stop talking. 6 7 Q. A. I'm sort of -Yes, but on our end of the line we would

8 be fine. 9 Q. Okay. Tell me now, if you would --

10 first, in the summer of '99, and you recall an 11 after-school type party, does something stand out in 12 your mind about one of your children's ages at that 13 point or a grade that they were graduating from or 14 something that sort of pinpoints that year? 15 A. It's just we were active with the

16 scouts. They were in school. They had an after 17 school party. I couldn't remember any particular 18 instance, it's just that they seemed to be outside, 19 which we were glad for. 20 Q. I guess what I'm trying to do with --

21 not very articulately, but the focus of the question 22 is how you know it was the summer of '99 versus the 23 summer of 2000 or something of that nature. Was there 24 something about the age of your children or some event 25 that stands out for that summer?

McCreary, Jeffery 01.13.06

Page 18

Case 1:01-cv-00201-VJW
00019 1 A.

Document 173-35

Filed 05/26/2006

Page 8 of 17

Well, our children are two years apart

2 in each age, so most of my -- at the time, I think he 3 was 14; my oldest son did not want his younger 4 brother's friends associating with him, at the time. 5 So they wanted to be outside having their party 6 because they were older. 7 8 Q. A. Okay. And it was middle school/high school

9 situation. 10 11 12 Q. A. Q. Okay. And that's why -I remember that. That's one of the reasons you can

13 identify that as '99 versus another year? 14 15 A. Q. Yes. All right. Now, tell me about when

16 those flights started happening at that point, what 17 impact that had on -- let's start with outside. 18 A. We used to be able to stay outside and

19 garden quite a bit. And as the flights became 20 noisier, it was less of an enjoyable hobby and more of 21 a -- something to be tolerated. 22 Q. And this is when the flights were

23 directly over the house at that point? 24 25 A. Q. Starting to fly, yes. Okay. And it's the sort of thing that

McCreary, Jeffery 01.13.06

Page 19

Case 1:01-cv-00201-VJW
00027 1 home all day? 2 A.

Document 173-35

Filed 05/26/2006

Page 9 of 17

She's at work but she gets home about 20

3 after noon. 4 5 6 Q. A. Q. What does she do for a living? She's a research biologist for the City. In turning now to your home in -- Finch

7 Avenue, Cardinal Estates, where it's marked G1, did 8 you experience flight operations when you lived 9 there? 10 11 12 13 A. Q. A. Q. Constantly, yes. Constantly. (Nodding) And that was -- you lived there from

14 1976 through when you moved to this house, about 20 15 years? 16 17 A. Q. That's correct. When you say "constantly," was that

18 everyday all day long? 19 A. Not all day, on a daily occurrence there

20 was some noise. Whether from flight operations or 21 testings of engines. 22 Q. And how did that affect your lives in

23 terms of gardening and the other things that you 24 did? 25 A. We didn't garden. We spent a lot of

McCreary, Jeffery 01.13.06

Page 27

Case 1:01-cv-00201-VJW

Document 173-35

Filed 05/26/2006

Page 10 of 17

00028 1 time, if it was loud, you left. You went to the 2 movies, you went somewhere else, another part of the 3 city. 4 5 6 7 8 9 Q. A. Q. A. Q. A. So the noise was bothersome, I gather? Bothersome, yes. Was this a house or an apartment? It was a mobile home place. Okay. We knew when we moved in where it was,

10 but we were willing to put up with it because of the 11 location and the price. 12 13 Q. A. What was good about the location? Price and location, because I worked at

14 Naval Station Oceana. 15 16 17 Q. A. Q. Do you still work there? No. How long did you work at Naval Station

18 Oceana? 19 20 21 A. Q. A. Two years. Until 1978. What did you do at the air station? I was an Aviation Administration

22 Maintenance Man, Second Class. 23 24 25 Q. A. Q. So you were in the Navy? I was stationed in the Navy, yes. So are you retired?

McCreary, Jeffery 01.13.06

Page 28

Case 1:01-cv-00201-VJW
00031 1 background -2 3 4 5 A. Q. A. Q.

Document 173-35

Filed 05/26/2006

Page 11 of 17

I was a Yeoman for the airplanes. Yeoman. That's E something? E5. So like a sergeant. I don't know any of

6 these Navy designations, unfortunately. 7 Can you tell me why you got out after

8 eight years? 9 A. I wanted to remain if I could go

10 somewhere else in the world, and they insisted on me 11 staying stateside. I don't care for stateside 12 service. Not enough to do. 13 14 15 Q. A. Q. And your wife was in Spain? My wife was in Spain. For those eight years, where were you

16 stationed? 17 A. In Quonset Point, Rhode Island, about a

18 year, six years in Spain, then a year at Oceana. 19 Q. What type of aircraft did you work on, I

20 guess? 21 A. Our squadron had EP-3s and EC-121Ms and

22 A-3s in Spain. 23 24 Q. A. Okay. Then in Oceana the squadron had left for

25 a Med deployment but they were flying F-4s.

McCreary, Jeffery 01.13.06

Page 31

Case 1:01-cv-00201-VJW
00032 1 Q.

Document 173-35

Filed 05/26/2006

Page 12 of 17

F-4 is a pretty loud aircraft; is that

2 right? 3 4 A. Q. Yes, they were. How would you compare the F-4 to, say,

5 the F-14 for loudness? 6 A. F-4 is -- generally were a lot quicker

7 in flying around, I didn't notice them because of 8 where I worked. I didn't notice them circling or 9 anything. They could be loud, but airplanes today 10 seem to be much louder. 11 Q. But in terms of the F-4 versus the F-14,

12 do you have a view as to which is louder out of those 13 two aircraft? 14 15 16 A. Q. A. I think the F-14 is much louder today. The F-14? Or whatever. Any other aircraft that

17 flies over our house. I don't know the designation of 18 the aircraft that fly over our house anymore, but the 19 aircraft today flying over our house seem to be louder 20 than what I remember the F-4 as being. 21 Q. And do you remember A-6s at all, did you

22 have any exposure to them? 23 A. I remember them flying over the house in

24 Cardinal Estates. 25 Q. And the F-14 is the Tom Cat; right?

McCreary, Jeffery 01.13.06

Page 32

Case 1:01-cv-00201-VJW
00036 1 2 3 A. Q. A. Not usually. And why the difference?

Document 173-35

Filed 05/26/2006

Page 13 of 17

Because we don't expect them to be

4 flying overhead the way they do and it's more of an 5 intrusion now. At the old location on Finch Avenue, 6 it was an accepted norm of the location and where we 7 chose to live because of the proximity to the base. 8 And where we live now, it's not part of the flight 9 pattern. So when the flights do fly overhead, it's 10 more bothersome. 11 Q. So I guess what I'm trying to figure out

12 then is, are the flights over your house not very 13 regular right now or is it a regular occurrence? 14 A. As I said before, I'm not always home at

15 the same time so I can only respond to the fact that 16 when they do fly overhead, they are more of a bother 17 because we don't expect them to be flying over our 18 house. 19 Q. But I thought you said earlier that it's

20 sort of been roughly consistent, the flight activity 21 in the vicinity of your home, since the summer of '99. 22 23 yes. 24 Q. Okay. So in light of that, have you not A. Consistent for the time that I'm home;

25 gotten used to it being that this is what it is?

McCreary, Jeffery 01.13.06

Page 36

Case 1:01-cv-00201-VJW
00038 1 location than you used to be? 2 3 A. Q. Yes.

Document 173-35

Filed 05/26/2006

Page 14 of 17

Okay. And what about your wife; you

4 said she was able to, I think, to also block it out, 5 zone it out in the Cardinal Estates location. And she 6 doesn't have the same ability to do that in the 7 current house? 8 A. Because of where we lived, we accepted

9 the fact that there was going to be noise. And where 10 we live now, we purposely moved there to get out of 11 the range -- not all noise, but the range. 12 So now that we're farther out and the

13 jets are flying farther and farther away from the 14 field, closer overhead, I don't think she's willing to 15 try to block anything out because we've moved and the 16 noise has followed us. 17 Q. So you -- did you target this particular

18 move or house to get away from the jet noise? 19 20 A. Q. To get farther away, yes. Okay. Did you, in doing that, did you

21 look at noise contours on -- what did you do to sort 22 of target that neighborhood to get away from the jet 23 noise? 24 A. Looking at the local library, the maps

25 and the real estate agents and by knowing where the

McCreary, Jeffery 01.13.06

Page 38

Case 1:01-cv-00201-VJW

Document 173-35

Filed 05/26/2006

Page 15 of 17

00039 1 noisiest neighborhoods seem to be, we settled in on 2 that part of the area. 3 Q. You looked at -- what maps did you look

4 at at the library? 5 A. Just the local area maps. And knowing

6 where the landing patterns and landing fields were at. 7 Q. So you looked at -- did you look at

8 local area maps that had noise contours on them like 9 this one does? 10 A. I can't say they had maps of noise

11 contours on them. But looking at the maps, we would 12 know that we would not want to be where we had been. 13 We would not want to be near Fentress Airfield. We 14 wouldn't want to be at the other end of Oceana, in the 15 Oceana Gardens area, because you knew where the noise 16 patterns where, so we tried to avoid those. 17 Q. And Oceana Gardens is off the end of the

18 runway that runs from 5 to 23, towards the ocean? 19 20 21 A. Q. A. Yes. So where the planes would take off? We wanted to avoid buying in those

22 areas. 23 Q. And Oceana Gardens is sort of right on

24 the cusp of the air station's property; is that 25 right?

McCreary, Jeffery 01.13.06

Page 39

Case 1:01-cv-00201-VJW
00040 1 2 A. Q. Yes.

Document 173-35

Filed 05/26/2006

Page 16 of 17

Which is very similar to where you were

3 at Cardinal Estates? 4 A. We didn't want to trade one bad site for

5 another bad site. 6 Q. What sort of investigation did you do

7 other than looking at maps to identify the noise 8 environment? 9 A. Talked to neighbors, talked to real

10 estate agents, our own experience of riding bicycles 11 in the area, knowing what the flight patterns seemed 12 to have been. 13 Q. Did you talk to neighbors -- what is

14 your neighborhood that you're in now have? 15 16 A. Q. Wellington Woods. Did you go and talk to neighbors in

17 Wellington Woods? 18 A. Talked to the neighbors in Wellington

19 Woods and they said they don't even notice the 20 airplanes, at the time. 21 Q. And what neighbors were those that you

22 talked to? 23 A. Most of the folks on Lord Leighton

24 Court. 25 Q. So you found a house, it had a "for

McCreary, Jeffery 01.13.06

Page 40

Case 1:01-cv-00201-VJW

Document 173-35

Filed 05/26/2006

Page 17 of 17

00044 1 sent to Oceana. There was nothing to do there. The 2 squadron was on a Med cruise so they left me there 3 and, as a second class AZ with nothing to do but watch 4 an empty barracks, so I decided to get out. There was 5 nothing to do. 6 Q. In other words, when you say nothing to

7 do, was it not sort of the social life outside the 8 military? 9 A. There was no squadron there except a few

10 people to maintain the hangar. I was used to port and 11 starboard duty; I was used to doing things. 12 13 14 15 Q. A. Q. A. Okay. I wanted something to do. You were bored? No. I just -- there was nothing to do.

16 There was no work. There was no maintenance. There 17 was no paperwork. There was nothing to do, and that's 18 not why I joined the Navy. 19 20 Q. I understand. And, so, when you returned from Spain to

21 Oceana, how long were you assigned at Oceana before 22 you got out? 23 24 25 A. Q. Two years. Two years. I'd like to go back to the discussion

McCreary, Jeffery 01.13.06

Page 44