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 SARA ANNE LYNCH HOAG TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 June 10, 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

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00008 1 Beach? 2 A. 3 Q. 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 Q. 16 A. 17 Q. 18 A. 19 Q. 20 live? 21 A. 22 Q. Jacksonville, Florida. September 1968. And why did you move here? Navy transfer. Were you in the Navy? No.

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Did you come with a family member? Yes. Who did you come with? My husband and my children. Was your husband in the Navy? Yes. And what did he do in the Navy? He was an aviation mechanic. I'm sorry. Did you say aviation? Mechanic. Okay. And how long did he do that? 30 years. Before you came to Virginia Beach where did you

Is that the first place that your husband was

23 stationed? 24 A. 25 Q. No. If you could, just summarize where you have

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00013 1 A.

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September of '52 until June of '52. '53; pardon

2 me. I'm sorry. 3 Q. That's okay. And did you live on a Navy base

4 then or a military base? 5 A. 6 Q. 7 A. 8 Q. 9 A. No. So you have never lived on a military base? No. No. What is your current occupation? I don't work. I'm retired. I was an LPN. I

10 guess I still am. 11 Q. 12 A. 13 Q. 14 A. 15 Q. What is an LPN? Licensed practical nurse. And what do you do? Right now? Or what does a licensed practical nurse do. If

16 you could just describe your job? 17 A. Almost as much as an RN, working in hospitals,

18 nursing homes, Doctor's offices. 19 Q. 20 A. 21 Q. 22 A. 23 Q. 24 A. 25 Q. Visiting with patients and -Hands-on care. Yes. And when did you retire? I stopped working in 1999. And why did you stop working? My vision. Did you have problems with your vision before

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00019 1 you think that the noise was louder, or a combination of 2 both? 3 A. At that period of time I don't -- I don't know,

4 but I don't think more jets were flying. It was that it was 5 the flight path. 6 Q. You moved into your current home at 1301 Brant

7 Road in 1990; is that right? 8 A. 9 Q. Correct. And do you remember the first time you

10 experienced jet noise there? 11 A. Well, yes. Right away. I always heard jet

12 noises, because they were. 13 Q. And how would you characterize that noise in

14 comparison to where you have lived before in Virginia Beach? 15 A. 16 Q. It was about the same as Ship Shoal Way. Okay. Do you think that jets fly directly over

17 your home on Brant Avenue? 18 A. 19 Q. Yes, they do. When do you think they fly directly over your

20 home? 21 A. 22 Q. 23 A. 24 Q. 25 A. Very frequently. During the day? Yes. What about at night? Yes.

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00032 1 Q. 2 A. Who lived --

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My oldest son was in and out, in and out,

3 intermittently. 4 Q. 5 A. 6 Q. Do you have any intentions to sell your home? No. Do you talk to any of your neighbors about jet

7 noise? 8 A. 9 Q. 10 A. 11 Q. No. Do you talk to anyone about jet noise? Not in depth. When you do talk about it, what do you talk

12 about? 13 A. I don't really talk. It would be if a jet was

14 going over and then we just kind of look and, or just don't 15 talk, you know. I don't elaborate on it with anyone, no. 16 Q. You mentioned that you stopped working in 1999

17 because of your vision? 18 A. 19 Q. 20 A. 21 Q. 22 A. 23 Q. 24 A. 25 Q. Yes. And are you legally blind? Yes. And is -- what was the medical diagnosis? Glaucoma. And when did you get that diagnosis? 1974 or '75. So is that something that your vision has gotten

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00042 1 Heat for purchase and installation of a new heat pump 2 system. And it's a receipt for -- well, the total cost was 3 $1,540? 4 A. 5 Q. Yes. And the balance was $1,040. It's dated June 17,

6 I believe, 2005. But I'm not sure. Does that sound right? 7 A. 8 Q. 9 A. No. No. When was that work done? I don't know exactly. But the original is

10 around. 11 Q. 12 A. Oh, that's okay. It was -- I'm really sorry. I don't remember,

13 but it was 2000 or 2001. It was -14 Q. 15 A. 16 Q. 2000 or 2001? Close. Okay. Was it about the same time you had some

17 other work done? 18 A. I really have had trouble remembering exactly

19 when I had the things done. 20 Q. Would you -- how would you describe your

21 experience with jet noise at your home in terms of its 22 interference with your day-to-day activities? 23 A. Well, on nice days, I like to open up the house,

24 and you can't. I open it up, windows, door, sliding door, 25 and if they are flying, then in a few minutes I have to

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00043 1 close it again.

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2 And sometimes I do that several times during the 3 day because I want the fresh air in, but if they are flying 4 steadily -- and sometimes they might start flying at 8 5 o'clock in the morning and it might be 11 o'clock at night 6 when they stop -- you can't hear the television at all, and 7 unless you're sitting there with the remote on the volume 8 control in your hand, you know, and it really is loud enough 9 that you turn up the television or the DVD music, the CDs to 10 full volume, and you can't hear it. 11 Going outside when they are flying is just 12 useless. If you are out there with friends, family, you 13 can't talk. There is no conversing at all. 14 Sometimes, I'm embarrassed to say, that the 15 noise, as loud noise will do sometimes to us, I get very 16 hostile. It's very -- there are times when it is so loud 17 that inside you vibrate. Inside your chest you can feel 18 vibrations. 19 Q. Would you say then that the jet noise is

20 intolerable? 21 A. When they are doing their stuff, yes. You can't

22 hear the phone ring. The doorbell ring. You can't talk on 23 the phone. And, as I said before, it takes a long time for 24 them -- for the noise to subside. And I know a minute 25 doesn't sound like a long time, but it can be. And then

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00044 1 sometimes they just, the next one comes and then the next 2 one comes. 3 Q. Can you listen to the radio when the jets fly

4 over or around you? 5 A. No. No. And I listen to audio books, CDs or

6 books on tape. And, no. No. It -- if they were going 7 to -- if you knew that it wasn't just a couple of them were 8 going to fly over and that was it, but if they -- if it was 9 going to be a day of flying, there would be no sense in 10 getting into a book. 11 One of the ways I have a little problem, we have 12 cluster mailboxes in the neighborhood, and my mailbox is 13 across the street and down the block. So for me to cross 14 the street, it has to be dead silent so that I can tell if a 15 car is coming. And sometimes I can walk out there and a 16 plane will be coming over. It could be quiet and I think, 17 okay, I can go to the mailbox now. And then here they come. 18 And I -- I have to stand on the street corner going to and 19 coming back until there is absolute silence. And it -- it's 20 just -- it just lasts so long. 21 Q. 22 A. 23 Q. When you -And they are so low. When you are listening to the books on tape, are

24 you wearing head phones? 25 A. Yes. Yes and no. Sometimes I do, sometimes I

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00045 1 don't. And I do prefer head phones when I listen. 2 Q. And does the noise interfere with your ability to

3 hear the books on tape when you're wearing head phones? 4 A. I hear all noises with the head phones, yes. Any

5 noise. 6 Q. 7 A. 8 Q. Do you listen to the radio with head phones? No. No. Would you say that the jet noise makes it

9 impossible for you to listen to the books on tape or listen 10 to the radio? 11 A. 12 Q. Yes. If I was going to listen to a book. What kind of head phones do you use when you use

13 them to listen to the books on tape? 14 A. 15 Q. 16 A. 17 Q. Just -- they are Sony. Do they cover your ears entirely? Yes. Yes. And between 1990 and 2000 when you were living in

18 your home, did you experience the same type of interruptions 19 when you were listening to books on tape or the radio or 20 trying to cross the street? 21 A. No. I didn't.

22 Throughout the early '90s, I didn't listen to 23 books on tape or have problems crossing the street. I could 24 do that by myself with no problem. 25 Could you ask me that question again, please?

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