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 MICHAEL J. LEARY, TAKEN ON BEHALF OF THE DEFENDANT

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00005 1 those. Work with curriculum, training guides, that type of 2 thing. 3 4 5 Q. A. Q. What type of supply? Naval Supply. I understand that. But I mean is it foodstuffs?

6 Is it weaponry? 7 8 9 10 11 A. Q. A. Q. Parts. Parts. Okay. And how long have you been doing that? About three and a half years. Three and a half years with Serco or with

12 Resource Consultants? 13 A. Most of it was with Resource Consultants. Just

14 the past couple of months Serco was acquired. 15 Q. And what did you do before that -- before you

16 were in this position? 17 18 19 20 21 22 23 A. Q. A. Q. A. Q. I was a storekeeper in the Navy for 20 years. Storekeeper. So you retired from the Navy? Yes, sir. What was your rank when you retired? Senior chief. Senior chief. Okay. If you would, go through your assignments

24 in terms of where you were located with the Navy throughout 25 the whole course of the 20 years?

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Do your children still -- is it two daughters, a

2 son and daughter? 3 4 5 6 7 A. Q. A. Q. A. Son and daughter. Do they still live at home now? Yes, sir. And how old are they now? 17 and 16? Yes, sir. Golly. I know he's 17. Yes. She's

8 16. She'll be 17 later on. Yes. 9 Q. And tell me about, has the noise from when you

10 first moved in, starting in -- was that '95 -- 1995 you 11 moved in the house? 12 13 A. Q. Yes, sir. Did your kids have any -- experience any problems

14 with the jet noise? 15 16 A. Q. No, sir. And did they have any problems in terms of being

17 woken up or anything? Any sort of problems at all from the 18 jet noise from then until now? 19 A. No. By that age they were out of the Knapp

20 stage. You know, they didn't typically -- none that I can 21 remember any flying late at night. So that wasn't an issue. 22 Q. Have they ever had any problems from the jet

23 noise? 24 A. Other than periodically, you know, holding their

25 hands over their ears when a jet flies over.

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00042 1 '95. I mean they have just always flown a lot. I just 2 never really kept track. 3 Q. And you said that they are louder. I think you

4 said today they are louder. When did they become louder? 5 The jets? 6 7 8 A. Q. A. Exactly -- '99, but exactly when I don't know. And how is it louder? How is it different? It's hard to explain but the noise from the jets

9 is significantly louder than it used to be with the F-14s 10 that they used to fly. 11 Q. And was it a -- I mean was it sort of a night and

12 day thing? Was it a dramatic difference that you noticed? 13 14 A. Q. Yes. So when did you notice a dramatic difference?

15 What happened? Was anything going on? 16 17 18 A. Q. A. No. That stands out? I knew that they were -- they had to bring up

19 these planes from Cecil Field, I believe it was in Florida. 20 You know, you hear on the news, you know, they were 21 different type plane, louder. And they sure were. 22 Q. So you heard on the news that a louder aircraft

23 was coming? Is that what you said? 24 25 A. Q. Yes. And when did you hear that on the news?

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00044 1 house from the Tomcat to the Hornet? Was there any change? 2 A. No. They appeared to be flying similar flight

3 paths. 4 Q. And can you estimate now the altitude of the jets

5 that are flying in relation to your house? 6 A. No. I'd hate to -- they are low. That's all --

7 that's the best estimation I can give you. 8 Q. Let's say if you had to put it in football

9 fields, for example. How many football fields? Stack them 10 up. 11 A. I'd hate to say. I really can't judge distance

12 that way. But they are close. 13 14 15 Q. A. Q. Can you read the lettering on the jets? At times, yes, sir. At times. Explain how at times -- how there's a

16 difference between the certain times you can read the 17 lettering and other times you can't? 18 A. Well, the closeness. If they are going over like

19 my next door neighbor's house, sure, I can pick it out. But 20 if they are just flying somewhere else over my subdivision, 21 my eyesight can't. 22 Q. And so you just said that at times the planes are

23 flying over your neighbor's -- your immediate neighbor's 24 house? 25 A. Or my house.

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Or your house. And other times it's flying

2 somewhere else in the neighborhood, above. Are they 3 sometimes flying directly over your house? 4 5 A. Q. Oh, absolutely, yes, sir. How would you distribute that proportion in terms

6 of directly above and then elsewhere above the neighborhood? 7 8 A. Q. I don't understand. Okay. Some of the times the jets -- you just

9 said some of the times the jets are flying directly over 10 your house? 11 12 A. Q. Yes. And other times it's not directly over your

13 house? 14 15 A. Q. Right. What are the relative percentages of that? Is it

16 50/50? Is it 20/80? 17 A. The percentages that they fly over my house

18 compared to elsewhere that I can see them flying? 19 Q. In and around your neighborhood? I don't mean

20 like if it's 10 miles away you can see one in the air. I 21 mean in the immediate vicinity of where you live? 22 MR. SWAIN: How immediate?

23 BY MR. BRYANT: 24 Q. Let's say -- well, we'll go through each level.

25 Let's say start with a mile.

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00050 1 what effect it did have in 1999 when they started flying? 2 A. No effect other than that they are just

3 significantly louder than what I remember. 4 Q. Has it -- did it change anything about the way

5 you lived in your house, the increased noise, being 6 significantly louder? 7 A. Other than, you know, having to raise the volume

8 on the TV, at different times, you know. You know, you'd 9 have to take all your phone calls inside. You know, you 10 obviously couldn't talk outside. 11 Q. Can you have conversations -- well, I guess

12 you're indicating that you could have a phone call inside 13 the house when the planes are going over and hear the other 14 person? 15 16 A. Q. Yes, sir. So you can obviously have this type of

17 conversation with somebody in your house when the planes are 18 going over and hear each other? 19 A. You might have to take a brief pause, especially

20 if it's going fairly close to your house. 21 Q. What about when you're outside in the 1999 time

22 frame and -- well, we're talking about the 1999 time frame. 23 What about outside? How would it affect you when you're 24 outside? 25 A. If you saw it coming, you would, you know, brace

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00051 1 for it. You would put your fingers in your ears, that type 2 of thing. 3 Q. Okay. So a conversation you were having would

4 cease until it passed over? 5 6 A. Q. Oh, absolutely. Anything else besides raising the volume on the

7 TV, phone calls inside the house, any other -- and then, as 8 you said, putting your fingers in your ears while you are 9 outside. Any other sort of effects that the noise would 10 have? 11 12 A. Q. Not that I can think of. Would you describe that sort of an impact as

13 making your house unsuitable for living, residential living? 14 15 A. Q. Let's just say it's less enjoyable. So if it's less enjoyable, then you still enjoy

16 your house but just not to the same level you would enjoy it 17 without the noise? 18 A. Well, it's, you know, it may be unsuitable. I

19 mean, it's just, you know, unfortunately something that I 20 have had to live with. 21 Q. Well, you said it may be unsuitable. I'm going

22 to explore this in terms of -23 24 A. Q. That's just a broad definition. I mean is your house with the noise with the

25 F-18s flying over it, which is, it's in the flight path, or

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00052 1 below the flight path, so that is something you are going to 2 experience. Recognizing that, is your house unsuitable for 3 residential living? 4 A. I believe where someone could get that

5 interpretation. 6 Q. Well, I'm asking you. What's your view of it?

7 Not someone else. 8 A. If I had to go one way or the other, I would say

9 unsuitable. 10 Q. Why do you say it's unsuitable for residential

11 living? 12 A. Well, it's -- you can't enjoy your yard.

13 Invariably -- and I guess it's probably because of safety 14 reasons, they fly on nice days when, you know, you want to 15 be outside in your yard; and it makes it rather unpleasant 16 to deal with the constant bombardment of the jet noise. 17 Q. Now, when you say constant, you mean when they

18 are flying? There's times when they are flying a couple of 19 weeks, and they won't fly for a couple of weeks. That still 20 holds true, right? 21 22 23 24 A. Q. A. Q. Pretty much, yes. And that was also true in 1999? Right. Let's go back to when you moved in in '95 and up

25 until '99. And there was obviously jet noise as you

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00058 1 we're putting them on a continuum. You're saying unbearable 2 is the worst? 3 4 5 A. Q. Unbearable would be if I was like being tortured. Okay. So at what level -- strike that. Explain why it's -- why it's approaching this --

6 or it's unsuitable for residential living, intolerable when 7 you are doing essentially the same things to deal with the 8 aircraft noise. Plugging your ears, going inside for phone 9 calls as we discussed, those things. Those are essentially 10 the same sorts of inconveniences as before the Tomcat. Why 11 is it shifting over to being intolerable and unsuitable for 12 residential living? 13 A. Because in the past, you would only have to do

14 those things if the aircraft was directly or -- directly 15 above your house or one of your neighbor's houses, but now 16 you have to do that if they are anywhere in the 17 neighborhood. 18 Q. Okay. Okay. Do you sort of have an idea -- like

19 when houses in the neighborhood are going up for sale, when 20 there's a sign out front of their homes, do you keep an eye 21 on that? 22 23 24 25 A. Q. A. Q. Do I see for sale signs in my -Yes. Absolutely. How many are there now approximately that you are

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00066 1 they have got some kind of head gear on. I don't know what 2 all they wear, but -3 Q. Is that every time the jets are flying over your

4 house, your immediate neighbor's house, or is that only 5 certain times? 6 A. Only certain times. They would have to be fairly

7 low. Sometimes they fly much higher. So, you know, I 8 can't -9 Q. What percentage of the time are they flying so

10 low that you can see what you describe as a silhouette or 11 this helmet gear kind of thing? 12 13 A. Q. A percentage? Maybe a quarter of the time. About 25 percent of the time. And would that

14 have been true, or was that true also for the Tomcats back 15 in '95, '96, '97, '98? 16 17 A. Q. I would say that's fair. What about vibrations? Do you experience

18 vibrations in your house when the jets are flying over your 19 house? 20 21 A. Q. Occasionally. Do you experience them when they are directly

22 above the house? 23 24 Let me strike that. Go back. Do you experience the vibrations if they are a

25 few blocks over and in the sky, obviously?

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In relation to the proximity, yes. That would

2 increase the vibrations. 3 And also it has to deal with, I guess, the speed

4 and, you know -- I don't know aviation. But sometimes they 5 get like afterburners or, you know -- and maybe even the 6 wind has something to do with it. But, yes, occasionally 7 there are vibrations. 8 Q. Has anything in your house broken or anything

9 because of the vibrations? 10 11 A. Q. No, sir. Has anything fallen off a shelf or anything of

12 that nature? 13 14 A. Q. No. And did you experience those vibrations with the

15 Tomcats? 16 17 A. Q. Not that I recall, no, sir. Have you ever called into the air station to

18 complain about noise or vibrations or any sort of impacts 19 from the jets? 20 21 22 23 24 A. Q. A. Q. A. Never. Why have you not done that? Because it's pointless. Why do you view it as pointless? Because they are not going to stop flying because

25 I ask them to.

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