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

Case 1:01-cv-00201-VJW

Document 173-26

Filed 05/26/2006

Page 1 of 2

Michael Leary - Test Case Plaintiff

Michael Leary retired after 20 years on active duty in the Navy (Exhibit 12B, Leary Deposition p.5). He and his family live at 3209 Chicory Court in the Landsdown Meadows subdivision of Virginia Beach, which they purchased in 1995. Their house has always been near or under a flight pattern. Prior to the arrival of the F/A-18s their children had no difficulty with the jet noise, which they heard often (id. p. 34). Beginning in 1999, with the arrival of the F/A18s, the noise became significantly louder. It was a "dramatic difference." (id. p. 42). The planes quite often fly low directly over their house or immediately adjacent to the house. (id. p. 44-45). Mr. Leary believes that his house has become unsuitable for residential living since 1999 (id. p. 50-51). Q. A. Why do you say it's unsuitable for residential living? Well, it's ­you can't enjoy your yard. Invariably ­ and I guess it's probably because of safety reasons, they fly on nice days when, you know, you want to be outside in your yard; and it makes it rather unpleasant to deal with the constant bombardment of the jet noise.

(id. p. 52) **** Q. Okay. So at what level ­ strike that. Explain why it's ­ why its' approaching this ­ or it's unsuitable for residential living, intolerable when you are doing essentially the same things to deal with aircraft noise. Plugging your ears, going inside for phone calls as we discussed, those things. Those are essentially the same sorts of inconveniences as before the Tomcat. Why is it shifting over to being intolerable and unsuitable for residential living? Because in the past, you would only have to do those things if the aircraft was directly or ­ directly above your house or one of your neighbor's houses, but now you have to do that if they are anywhere in the neighborhood.

A.

(id. p. 58).

Exhibit 12A - Michael Leary Deposition Summary - Test Case Plaintiff - Page 1 of 2

Case 1:01-cv-00201-VJW

Document 173-26

Filed 05/26/2006

Page 2 of 2

Mr. Leary's home also has suffered from vibrations since 1999 when the F/A-18s are operating. Prior to that time there was no vibration problem. (id. p. 66-67)

Exhibit 12A - Michael Leary Deposition Summary - Test Case Plaintiff - Page 2 of 2