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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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 12 13 14 Virginia Beach, Virginia 15 April 28, 2005 16 17 18 19 Appearances: 20 21 22 23 24 25 SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P.C. By: STEPHEN C. SWAIN, ESQUIRE Counsel for the Plaintiffs U. S. DEPARTMENT OF JUSTICE By: STEVEN D. BRYANT, ESQUIRE DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant DEPOSITION UPON ORAL EXAMINATION OF BETTY J. CAPPS, TAKEN ON BEHALF OF THE DEFENDANT

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Dodge's Store. That's what it is. Like the car? Yes. And how long have you been doing that? 16 years. Just about. Almost 16 years. And how long have you lived in -- what did you do

7 before that, I'll ask. 8 9 A. Q. I did not work. Okay. And how long have you lived in Virginia

10 Beach? 11 12 13 A. Q. A. Since 1975. And why did you move here? My father was in the military and we retired

14 here. He retired here. 15 16 17 18 Q. A. Q. A. What -- he was in the Navy I assume? Yes, sir. And what rank did he retire as? I'm not certain. I think it was an E-6. I don't

19 know. I have no idea. I don't remember. 20 21 22 Q. A. Q. All right. Was he enlisted, though? Yes, sir. And he was at some point a noncommissioned

23 officer. Is that fair? 24 25 A. Q. That's correct. All right. And does he still live in the area?

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00023 1 don't remember them ever being as close as they are now back 2 then. I just don't recall. I mean, I'm sorry. That's all 3 I can remember. 4 5 6 7 A. Q. Q. That's okay. When you look -- let's first talk about that. Okay. What percentage of, let's say present day, what

8 percentage of the jets that fly over your house fly directly 9 over your house? 10 11 A. Q. 40 percent. Less than half. And the remaining 60 percent,

12 roughly. How many blocks are we talking in a radius away 13 from your house, and you're still hearing those impacts? 14 15 16 A. Q. 10 blocks. 10 block radius. Has that spatial relationship to your house, has

17 that remained consistent from when you moved in in 1981 in 18 terms of roughly 40 percent directly over, and the remaining 19 roughly 60 percent within that 10 block radius? 20 A. If I can recall in the '80s, I wouldn't say 40

21 percent were overflights back then. I think they were more 22 the 10 blocks away or -- you know, 10 blocks away in a 23 circumference. 24 25 Q. Does that make sense? I think so.

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Are you saying that 40 percent would have been in

2 the wider 10 percent -- I mean 10 block radius. What 3 percentage would have been directly over your house in the 4 '80s? 5 6 7 A. Q. 10, 20 percent. 10, 20 percent. Was there -- when you say the '80s, was it the

8 same consistent throughout the entire '80s that you were 9 there, '81 to '90? When did it change from 10 to 20 percent 10 flying directly over your house to what you describe now as 11 40 percent flying directly over your house? When did that 12 happen? 13 A. In the early '80s, the jets were a little bit

14 more abundant. Then it seemed to slack off to the point 15 that we didn't really pay any attention to them. And then 16 they picked up after 1999. So it's varied over 24 1/2 17 years. It's varied over how often the jets and where they 18 fly and where they are in relationship to our home. 19 20 Q. A. Okay. So that's hard to answer because it's been such a

21 long period of time. In the '80s, they were much more 22 prevalent. In late '80s, early '90s, they were not. 23 24 25 A. Q. Okay. Well, then -- fair enough. So in the -- you moved in about '81? Right. '81. It was '81.

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00026 1 flights and that kind of thing before you moved in? 2 3 4 5 6 A. Q. A. Q. A. No. Why didn't you do that? You mean before we rented it? Yes. Oh, because we were kids, and we needed a house,

7 and it was cheap, and we moved into it. 8 9 10 11 12 Q. A. Q. A. Q. And how old were you at that time frame? I was 21. And you had just gotten married I guess? We had been married, yes. And in those first, '81 through '83 when there

13 was a high level of operation, then it went down, what 14 impact did that have on your daily lives? If you were 15 outside, could you talk to one another? 16 17 A. Q. Yes. You could talk without having to talk loud or

18 anything of that nature when the jets were going over your 19 house? 20 21 A. Q. Yes. Did you have to turn up the volume of your

22 television, or anything of that nature, at that time frame? 23 A. I don't remember ever having to do that at that

24 time, no. 25 Q. Now, I think you said '99 is when the operations

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00027 1 spiked again. Is that the time you said? Or when did it 2 spike again? 3 A. To be honest with you, I never paid any attention

4 until the noise level grew to an uncomfortable level. We 5 always could operate our lives like we've always operated 6 them until after '99. 7 Q. And when you say after '99, can you tell me what

8 month when that happened? 9 A. I can't tell you the month. I think it was in

10 the fall. 11 12 13 Q. A. Q. Fall of? '99. Okay. And why do you think it was the fall of

14 '99? Why does that jump out to you? 15 A. The first time I was out in the yard talking to

16 my brother, and for the first time ever we could not 17 communicate. We could not talk. And I remember looking up, 18 going, what is that? And it just shocked me. 19 20 Q. A. Does your brother live in the neighborhood also? He lives in Windsor Woods. He was visiting me

21 that day. 22 23 24 25 Q. A. Q. A. Where is Windsor Woods? Here we go again. I mean roughly? Roughly it's near where I used to live on Chester

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00062 1 demand for the houses in your neighborhood from what you 2 described of the one-day sales and bidding above the asking 3 price and that kind of thing. Is that a correct statement? 4 5 A. Q. Yes. Yes. Do you -- you identified the fall '99 time frame

6 as to when things changed in terms of you can go longer have 7 conversations when the jets were overflying your house? 8 9 A. Q. Exactly. And did you ever experience that before when you

10 lived in the house, whether you owned it or rented it? 11 A. I don't remember it not being able to have a

12 conversation. 13 Q. Okay. And could you have phone conversations

14 outside of your house before 1999? 15 16 17 18 19 20 21 22 A. Q. A. Q. A. Q. A. Q. Yes. You could? Yes. And could you do it after '99? When the jets are flying, no. That's what I mean. The jets are flying? No. And my question is before '99 when the jets are

23 flying, could you have a phone conversation outside? 24 25 A. Q. Yes. You could.

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Do you have any experience with vibrations from

2 the jets flying over the house? 3 4 5 6 7 8 9 A. Q. A. Q. A. Q. A. You mean like my house vibrating? Or things within the house? Yes. Has anything ever broken? No. No. Has anything ever fallen off, a picture? We've had pictures fall. Not off the wall, but

10 like a table that is near a window, it will vibrate. If you 11 don't watch them they will work their way to the edge and 12 fall off. 13 14 15 16 Q. A. Q. A. But nothing has ever broken because of that? No. Did you have vibrations before '99? Occasionally, like the huge jet would come over.

17 That C -- whatever that thing -- that would vibrate the 18 house. The helicopters would vibrate the house. 19 20 21 22 23 24 Q. A. Q. A. Q. A. And did you have any break at those times? No. What about when the F-14 flew over your house? I don't remember their vibrating the home. And the A-6? That was in the '80s. I don't remember -- we

25 never broke anything. I don't remember any vibrations

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00064 1 per se back then. 2 Q.

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Do you view your house as unsuitable for

3 residential living based on the noise you are experiencing 4 from the F-18s? 5 6 7 8 A. Q. A. Q. Yes. You view it as unsuitable for living? Yes. And you viewed it to be unsuitable for

9 residential living since 1999? 10 A. Off and on since 1999. We go through spells,

11 yes. 12 13 Q. A. And what do you mean by off and on? Sometimes the jet activity is so bad it goes on

14 for weeks that you go, this is it, we've got to move, and 15 then it gets better and you think oh, thank God, and you 16 make peace with it again, and it starts up again and you 17 think, well, it's bad again. 18 Q. Well, in light of the fact that you have these

19 sort of surges and down times, and that kind of thing, 20 considering that, is it unsuitable for residential living, 21 based on it goes up sometimes and then it goes down? 22 A. It's hard to say. Because when it's bad it's so

23 bad that you lose perspective. So I guess it's not 24 unsuitable for residential living. It's uncomfortable for 25 residential living.

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Do you believe your property value has diminished

3 because of the jet noise? 4 5 6 A. Q. A. Yes. Why do you believe that? Because it's -- when you discuss with people

7 about the noise, they go, How do you stand to live in that 8 neighborhood? And I think people think the same thing when 9 they are thinking about purchasing a home out there. 10 Q. How do you reconcile that with what you said

11 earlier in terms of it's a relatively small neighborhood and 12 there's a high demand for homes in that neighborhood? 13 A. Because the homes in that neighborhood are very

14 close to Oceana, and I think a lot of military move out 15 there, but I don't think that we would receive as much money 16 for our home if it was in an area without jet noise. I 17 don't think people with children want to live someplace 18 where their kids are playing having their ear drums blasted 19 out of their head. 20 Are you talking like the house selling in a day

21 across the street. 22 23 Q. A. Sure. I also know there are not a lot of homes

24 available in that price income right now. But I think if it 25 had been someplace else they probably would have gotten more

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Have you ever gone to the doctor and inquired

2 about this pain in your ears, this discomfort as you 3 describe it? 4 5 6 A. Q. A. What, from the noise? Yes. No. I did go to the doctor one time when I had

7 the earplugs in my ears that I was wearing because it 8 started to make my ear bleed, but besides that, that's the 9 only time I have been to the doctor for my ears. 10 11 Q. A. Why were you using earplugs? They were flying constantly, sometimes all day

12 long and into the evening, and I have to get up to go to 13 work at 4:30. They were flying after 10. I was trying to 14 get to sleep. And I was wearing earplugs every night. 15 Q. And the earplug itself was causing your ear to

16 bleed? 17 A. It caused it to break the little membranes inside

18 of my ears, and I had to take the earplugs out, yes. 19 20 21 Q. A. Q. And when did that happen? 2005. It was probably 2002, 2003. Can you see the pilots when they are flying over

22 your house? 23 24 A. Q. I can see the head of the pilot, yes. And is that all the time or every time it flies

25 over?

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MR. BRYANT: Off the record. (Mr. Ferrebee left the deposition room.) (Recess)

4 BY MR. BRYANT: 5 Q. I think you said earlier that your husband sleeps

6 during the day and works at night? 7 8 9 A. Q. A. Yes, he does. What does he do? He works at Nova Chemicals. He works shift work.

10 So sometimes he sleeps during the day and sometimes he's 11 working during the day. 12 13 14 15 16 17 Q. A. Q. A. Q. A. Is he able to sleep? No. With the jet noise? When the jets are flying, no. Okay. So how often goes that happen? If the jets are flying, he works -- 30 percent of

18 what he works is nighttime work. So I would say a good 20 19 percent, if they are flying low. It depends how they are 20 flying. If they are flying a little bit away, then he can 21 sleep. If they are right over the top of us, it's 22 impossible to sleep. 23 Q. And has that caused any problems for him at work

24 and that kind of thing? 25 A. No.

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