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 CHARLES K. NASH TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 January 13, 2006 16 17 18 19 Appearances: 20 21 22 23 24 25 SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P.C. By: CHARLES LUSTIG, ESQUIRE Counsel for the Plaintiffs U. S. DEPARTMENT OF JUSTICE By: KELLE S. ACOCK, ESQUIRE And DEPARTMENT OF THE NAVY COMMANDER NAVY REGION ATLANTIC By: DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

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00004 1 If you need a break at any time please feel free 2 to let me know and we'll take a break. 3 Can you state your name and address for the 4 record? 5 A. Charles K. Nash, 2617 Boush Quarter, B-o-u-s-h,

6 in Virginia Beach, Virginia 23452. 7 Q. And have you ever been involved in a lawsuit or

8 litigation before? 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. No. Have you ever testified under oath before? Yes. And when was that? Oh, goodness. Early 1988. And what was that in relation to? At a service station robbery. I was a witness. Was that here in Virginia Beach? Yes. And were you a witness for the prosecution or the

19 defense? 20 A. 21 Q. 22 A. 23 Q. 24 A. 25 Q. The prosecution Do you remember the outcome of that? The party was guilty. And did you bring anything with you today? Like? Documents.

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00005 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. Oh, no.

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How long have you lived in Virginia Beach? Since 1976. And since 1976, have you lived at 2617 Boush? No. Where did you live -- if you could just walk

7 through all your addresses here in Virginia Beach? 8 A. Okay. Some of them I may not be too accurate on.

9 When I first came down in '76 I was stationed out at Dam 10 Neck and lived in the barracks out there and aboard ship. 11 It was the USS AMERICA then. Then we moved to Beach Walk 12 Drive. I'm trying to think. That was probably about '81. 13 And then in '85, went to Drew Drive. And then I guess in 14 '93 moved into this house in Boush Quarter. 15 Q. I'm going to show you what we've previously

16 marked as Defendant's Exhibit exhibit 122. And if you could 17 walk through -- you can use my pen -- and locate those four 18 addresses on the map. And we have just been placing a 19 letter there and circling. So our next letter would be L. 20 A. Okay. Well, when I lived in the barracks, I was

21 out about here. 22 Q. 23 A. 24 Q. Okay. Just put an L there? Yes. If you could just place an L with a circle

25 around it.

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00009 1 A.

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From what I understand it had been on the market

2 for over a year. 3 Q. Okay. Was that typical in '93 that houses would

4 stay on the market for about a year? 5 A. 6 Q. I don't have any idea. Since you and your wife own the home, have there

7 been any legal actions associated with the property? 8 A. 9 Q. Not against us. And has the home been appraised since you

10 purchased it? 11 A. 12 Q. Yes. If you could, just tell me the years that it's

13 been appraised and the value? 14 A. I wish I had my wife here for that one. She

15 keeps track of those sort of things. The latest one was 16 during the last refinance. I believe that was -- I believe 17 appraised it at 480. And that was about two years ago. 18 Q. 19 A. 20 Q. 21 A. In '03 or '04? Yes. About that. Any other appraisals? I think we did it once before and I can't

22 remember when. It was in between. 23 Q. 24 A. 25 Q. In between the purchase and the -Right. Whenever the interest rate was favorable. Was there an appraisal associated with your

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00010 1 purchase of the property? 2 A. 3 Q. 4 A. 5 Q. Yes. I believe there was.

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Do you remember the appraised value? I think it appraised at the 260. 260. Have you made any improvements to the home

6 or the property? 7 A. 8 Q. 9 A. Yes. Could you walk me through those, please? I don't know whether -- well, we've added a

10 bathroom upstairs, remodeled all the bathrooms downstairs, 11 carpet and tile. I guess the major one was ripping all the 12 windows out and putting new ones in back in '99. 13 Q. 14 A. 15 Q. What prompted you to put new windows in? The arrival of the F-18s. What about the arrival of the F/A-18s made you

16 want to put new windows in your home? 17 A. Well, we had the old single pane windows with

18 storms over the top of them and in reading I found out that 19 you could cut the noise down by putting in these double pane 20 gas filled windows, and so forth, and so that's what we did. 21 Q. When you refer to your by reading, what did you

22 read that suggested that? 23 A. Anything I could find on the internet and so

24 forth about noise reduction. 25 Q. And did the windows in your opinion help to

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00011 1 decrease the noise? 2 A.

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Dramatically. Plus we added insulation in the

3 attic wherever we could. 4 Q. Can you describe what you would perceive the

5 noise to be like before the new windows and the insulation 6 and what you experienced after? You mentioned it 7 dramatically changed. 8 A. Well, before you couldn't talk on the telephone

9 if they were flying overhead, and now you can still carry on 10 a conversation there. That's the biggest thing. 11 Q. Are you able to watch television and hear the

12 television? 13 A. For the most part, yes. Every now and then

14 somebody takes the roof off. 15 Q. 16 A. Not literally? No. Well, every now and then we get an

17 overflight that is more than normal. If you look at the 18 pattern and where we're located, we don't normally, because 19 they use this runway most of the time. 20 Q. And which, just for the record and Mrs. Zahn, you

21 are pointing at Defendant's Exhibit 122? 22 A. Yes. I'm trying to think what runway that is.

23 They are normally using 5 right or left. And it's not, you 24 know, until they start using 14 left and right. When they 25 use 14 left and right, that's when it gets really obnoxious.

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00012 1 Q.

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And how do you know which runway the jets are

2 using? 3 A. Well, when they come in to go to runway 5, they

4 will be cycling around over towards Lynnhaven Mall off to 5 the east of us and when they come in to use runway 14 they 6 come directly overhead. 7 Q. 8 A. 9 Q. Directly over your home? At very low altitude. How often would you say -- you could use

10 percentages of 100 percent -- would you say that the flights 11 are directly over your home as compared to when they were 12 using runway 5? 13 A. I couldn't tell you, but I'm sure that Oceana

14 could. I mean they can tell you how many times a year they 15 use that runway. I think we are probably in the 10 -- about 16 10 percent. Maybe less. 17 Q. 18 A. 10 percent of? Of their landings when they use that runway.

19 They don't use that very often. 20 Q. 21 A. 22 Q. 23 A. 24 Q. 25 A. I'm sorry. Which runway are you talking about? The 14. That's very fortunate for us. What is your current occupation? I'm a combat systems engineer. I'm sorry. I didn't quite hear you. Combat? No. Combat systems engineer.

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00013 1 Q. 2 A. Can you explain that?

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Well, we design combat systems for the Navy,

3 concentrating right now on aircraft carriers. 4 Q. 5 A. 6 Q. 7 A. 8 Q. 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. 19 A. 20 Q. Who is your employer? Technology Management Group. And how long have you been with them? Been with them for six years. Since 2000 or '99? About 2000, yes. And what did you do before that? The same thing. Just a different company. And what company was that? That would have been C-Cubed. Could you spell that? C-Cubed. How long were you with -C-Cubed. I think five years. Have you ever been in the military? Yes. Can you give me the dates that you were in the

21 military and what branch of service? 22 A. 23 Q. 24 A. I was in the Navy from 1963 to 1985. And where were you stationed? All over the place. From '76 until I retired

25 here in the local area on ships and shore stations. You

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00014 1 want the specific ones? 2 Q. 3 A. Yes, please.

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I was on -- let me see. To work backwards from

4 '85, I was at the Navy Manpower Engineering Center from '83 5 to '85. 6 Q. 7 A. Where was that located? That was located in the College Park section of

8 Virginia Beach. 9 And I was on the USS KING prior to that from '81 10 on. And from '78 to '81 I was at Dam Neck as an instructor. 11 Q. 12 A. 13 Q. 14 A. What did you teach? I taught the Naval tactical data system. NTDS. And before that? USS AMERICA from '77 to -- I'd say '78, '79,

15 somewhere in there. And then in '76, I was a student. 16 Q. 17 A. And from '63 to '76? In, let's see, from '70 to '76 I was stationed in

18 Brunswick, Maine, VP-10. And in '69 and '70 I was in 19 Patuxent River, Maryland in VP-30. From, I guess '67 20 through '69, into '69 I was in VP-50. Most of that Vietnam. 21 And part of that in school in Memphis. 22 Q. I think you mentioned VP 10, 30, and 50. What

23 does that stand for? 24 A. 25 Q. Patrol squadrons. Fixed wing patrol aircraft. So were you a pilot of the aircraft?

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00018 1 Q.

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Did they tell you anything about Oceana before

2 you purchased the property? 3 A. They showed me a map very similar to this one,

4 and we looked at it and noticed that, if I'm not mistaken, 5 this map is more recent than the one that used to be out 6 there. 7 Q. This is an AICUZ map, Defendant's exhibit 122 is

8 an AICUZ map, and I believe it's dated 2005. 9 A. Right. And if I'm not mistaken, the one that

10 used to be out there did not have these outer bands, these 11 last two. The only thing it showed was that we were on the 12 fringe of the only -- you know, there was like a pink area 13 that showed some jet noise and so forth. And we were on the 14 outer side of the thing. There was nothing indicating any 15 of these bands out here as far as I knew. 16 Q. When you are referring to these bands, the one

17 that is labeled 65 and 70 on Defendant's Exhibit 122? 18 A. I do not believe those were shown on the map that

19 they showed us. Because they did point out, because you 20 know we were concerned about the noise and the impacts and 21 so forth. But we were outside of it. And -22 Q. What were your concerns about the noise when you

23 purchased the property? 24 A. Well, we had only looked at it a couple of times

25 and if you visit a thing on Sunday, when the Navy is not

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00021 1 the carrier? 2 A. 3 Q. Every chance you get.

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You mentioned earlier that when you installed the

4 windows and the insulation, that after the -- after the new 5 windows and insulation, that you were able to have the 6 conversation for the most part inside your home. Before 7 that time, can you tell me what -- between '93 and I believe 8 you said in '99 when the windows were installed, what noise 9 did you experience at your home? In terms of being able to 10 have a conversation. Could you watch the television? 11 A. Between '93 and I guess the fall of '98, it

12 wasn't too bad. You'd get an occasional loud A-6 coming 13 over that would interrupt a phone call or television or 14 something, but between '93 and the fall of '98 it wasn't too 15 bad. It was when the F-18s came that the noise level got to 16 the point where you would have to say, wait a minute, 17 there's an airplane going over. That's when we decided to 18 put the windows in. It was -- I guess it really was the 19 spring of '99 that we first decided we had to do something 20 about it, because that's at the end of winter. We open the 21 windows to get some fresh air in at night or something like 22 that. And if they are flying, we close the windows up 23 again, turn the air conditioning back on because we couldn't 24 stand the noise. 25 Q. How long would you say it was when you noticed

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00040 1 to the same kind of patterns most of the time. Except that 2 you can't really count on them staying in the pattern. I 3 mean, it's just -- if there are six flights come around then 4 there will be the seventh one that comes out of no where. 5 He's obviously way out of where he's supposed to be. I 6 don't know what they are doing. 7 Q. And in terms of the F-14s that were flying before

8 the F-18s came, when those jets were flying that pattern, 9 would you experience the same thing about not being able to 10 have a conversation, or having to pause during the 11 conversation, or not being able to hear the television? 12 A. Every now and then. But it's a different -- it's

13 a different noise from the F-14s. 14 Q. 15 A. How is it different? The F-18 is not just louder. It's -- I don't

16 know, piercing. I can't quite describe it. It's -- you can 17 have a very loud noise and then you can have one that really 18 hurts. And the F-18s hurt. 19 Q. Did you remember when the change in the noise

20 occurred? 21 A. 22 Q. When the airplanes arrived. '99, I guess. How did you locate Tignor Construction for the

23 windows? 24 A. 25 Q. They are a friend of ours. Are you aware of other homes that they have

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00041 1 installed new windows and insulation? 2 A. They are primarily a new construction business

3 rather than that. I have known Steve's wife for years, 4 so -5 Q. We talked earlier about your time on some of the

6 air stations, and I think you may have even mentioned that 7 in '93 when you first moved into the home. Were there any 8 other aircraft, aircraft noise that you were exposed to 9 besides the F-14? 10 A. 11 Q. 12 A. 13 Q. When I first moved in? Yes. Yes. A-6s. How could you compare the noise from the A-6 to

14 the F-14? 15 A. 16 Q. 17 A. A-6s are louder. Louder than the F-14? Yes. I think. And again it's a different --

18 it's a different noise. 19 Q. 20 A. 21 Q. 22 A. A different noise? Yes. How would you compare the A-6 to the F-18? Again, it's a different kind of noise that -- an

23 A-6 is a pretty loud airplane, but these F-18s are not just 24 loud, but they are painful. 25 Q. What do you mean by painful?

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