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 CARROLL LINDSAY TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 June 9, 2005 16 17 18 19 Appearances: 20 21 22 23 24 25 HOFHEIMER / FERREBEE, P.C. By: KRISTEN HOFHEIMER, ESQUIRE Counsel for the Plaintiffs

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00011 1 Q. 2 A.

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And why did you sell your home on Royal Palm? It was a divorce situation, and the ex-wife

3 forced the issue. 4 Q. So when you moved into the rental home on Mornay

5 Drive, were you the only one living in that house? 6 A. 7 Q. I had a girlfriend. And then you went from the rental home and you

8 bought the current home that you have now? 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. Correct. When did you buy the house? In 1994. Okay. July. June or July. Okay. Mr. Lindsay, I'm showing you, this is

15 marked Defendant's Exhibit 10. And what I'd like you to do, 16 if you can -- sorry. Is that -- there you go. If you could 17 show me on the map where you have lived in Virginia Beach in 18 terms of the first home that you lived at on Independence 19 Boulevard, or in that area. And if you could just show me? 20 A. 21 Q. 22 A. My eyes, nor my neck is going to reach that far. No. That's fine. Laskin Road. North Great Neck. It's not on the

23 map. Independence Boulevard is further west towards 24 Norfolk. 25 Q. Okay. What about your home, the first home that

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00020 1 June of 1998 was when the first cancer was detected, 2 diagnosed, whatever. 3 Q. And so after June '98 you were here in Virginia

4 Beach during the week? 5 A. Correct. With an occasional trip up to

6 Cincinnati, the home office, because theoretically I was 7 still on the payroll. 8 Q. 9 A. 10 Q. Okay. Not theoretically. I was on the payroll. You mentioned earlier that when you first moved

11 into the home, you didn't think the jet noise was 12 insignificant. When do you think -13 A. I'm sorry. When I first moved into the home, I

14 thought the jet noise -15 Q. 16 A. 17 Q. Was not significant? Correct. Do you remember when you noticed the jet noise

18 becoming more significant? 19 A. Well, with the coming of the F-18s, without

20 doubt, without any question, reservation, whatsoever, 21 without doubt, that was when that first occurred. And it 22 was in the time frame of when I was I'll call it 23 recuperating or recovering from the first cancer operation 24 that I had, and the subsequent radiation treatment that I 25 had, which went over a period of three or four months, which

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00021 1 would have been the fall of 1998. 2 Q. 3 A. 4 Q. The fall of '98?

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Correct. The surgery was in June, July of 1998. And that coincides with increased jet noise that

5 you experienced in your home? 6 A. 7 Q. I was home. Yes. When you first came to Virginia Beach in 1979,

8 did you know the Naval Air Station Oceana was here? 9 A. 10 Q. Yes. Did you know that they flew jets in and out of

11 the base? 12 A. 13 Q. Oh, of course. Did you ever experience jet noise at any of the

14 other homes that you lived at in Virginia Beach? 15 A. 16 No. 17 Q. 18 A. What do you mean by significant? Significant means to the point where it was I'm sure I did. But was it anything significant?

19 bothersome. 20 Q. 21 A. What is bothersome? Bothersome in that context to me would mean

22 something that would interrupt my daily routine, my life, or 23 something of that nature. 24 Q. 25 A. Okay. Can you give me an example? An example of something that would interfere with

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00022 1 my life? 2 Q. 3 A. Yes.

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I'm standing out in my yard talking to my wife

4 and suddenly we can't hear each other. We just have to stop 5 because you can't hear. 6 Q. 7 A. 8 Q. 9 A. Has that happened to you in your current home? Most definitely. Do you remember the first time that happened? I couldn't tell you exactly. It was sometime in

10 the 1998 time frame. 11 Q. What about when you are inside your home? Can

12 you hear jets? 13 A. It's muffled somewhat. But when you are watching

14 a TV program and you have got the volume so loud that 15 it's -- I'm going to say almost vibrating the floor, the 16 volume is so loud, and you still can't hear the TV, that's 17 bothersome to me. 18 Q. 19 A. 20 Q. 21 A. You mean the TV volume vibrates the floor? Yes. Or the jet -Well, the jet noise too. Windows have shaken in

22 my house. And I don't think that was because of the volume 23 of the TV. 24 Q. Okay. You mentioned that you and your wife would

25 be having a conversation outside. Does she live with you

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00023 1 now? 2 A.

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Yes. She is my wife now. When I referred to

3 girlfriend earlier, it's my wife now. 4 Q. 5 A. 6 Q. 7 A. Have you seen jets fly over your property? Numerous times. Can you describe that for me? Oh, I mean I don't know exactly how to describe

8 it. Jets -- I mean I'm not trying to give you a smart 9 answer. Here's a plane. I'm standing outside. I hear the 10 noise, a tremendous noise coming, and I look up and there's 11 a jet plane. I recognize a jet plane. Sometimes they are 12 very low. 13 Q. 14 A. Can you tell me, or can you describe how low? I don't know. I can't judge distances looking up

15 in the air. I don't know. Low. To me, very low. 16 Q. 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. 23 A. 24 Q. 25 A. You mentioned you have trees on your property? Yes. Do they fly close to the trees? Yes. To the tops of the trees? Yes. Do you know about how far? I can't give you a number of feet. I don't know. They seem to be close? They seem pretty darned close to me, yes. Using

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00071 1 about the jet noise? 2 A. 3 Q. 4 A. I don't know that it will.

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What would eliminate your concerns? To eliminate the jet noise, or to make the jet

5 noise I'll call it tolerable. 6 Q. You described the noise a few minutes ago as

7 intolerable? 8 A. 9 Q. 10 A. 11 Q. Yes. What would be your opinion of what is tolerable? I'm sorry. Well, what is the difference between what is

12 intolerable and what is tolerable? 13 A. The difference between tolerable and intolerable,

14 as it relates to jet noise, is the difference between, as an 15 example, something that disrupts my life-style as opposed to 16 something that does not disrupt my life-style. 17 Something that interferes with my conversation 18 with my wife or my neighbor or someone that is visiting, and 19 prohibits that conversation from taking place, as opposed to 20 the opposite of that. To me, that's what I mean by 21 tolerable or intolerable. Or not tolerable. 22 Q. Do you think the noise was tolerable before the

23 fall of '98? 24 A. I do not recall the disruption and the noise

25 level being to anywhere near the extent prior to the arrival

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00072 1 of the F/A-18s. Or putting it a different way: The 2 activity with the F/A -- with the F-14s as an example, the 3 Tomcats, there was noise levels there, but that I did not 4 necessarily put in the intolerable category. 5 Q. 6 A. Why is that? For the reasons that I have already stated. It

7 was -- the noise level is -- it's certainly there with the 8 F-14s. But it is not intolerable to the extent that it 9 disrupts my life-style, to the extent that it keeps -10 prohibits me from carrying on a conversation when they are 11 flying. 12 Q. When the F-14s are flying, how do you know F-14s

13 were flying before the F-18s? 14 A. Well, generally speaking, I can tell the

15 difference between -- visually, between an F-14 and an F-18. 16 Q. So did you see F-14s flying near your property

17 before you saw F-18s flying? 18 A. 19 Q. 20 A. Yes. When did you see F-14s flying? I don't recall. I mean I couldn't tell you a

21 date. I don't know. I can't remember. 22 Q. 23 A. 24 Q. Would it be before the fall of '98? Yes. And when you saw those F-14s flying, could you

25 have a conversation outdoors then?

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00074 1 less frequently? 2 A.

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The noise level was not as high. The noise level

3 was not as high. I don't know how else to answer that 4 question. It was not as disruptive. 5 Q. Did you have conversations outside your house

6 when the F-14s were flying? 7 A. 8 Q. I don't remember. Do you know if you were ever watching TV when the

9 F-14s were flying over? 10 A. I couldn't answer that definitively, one way or

11 the other. I don't have a schedule of when F-14s fly. That 12 in relation to when I watch TV. My life is not structured 13 that way. 14 Q. You mentioned earlier that you are married. What

15 is your wife's name? 16 A. 17 Q. 18 A. 19 Q. Brenda. Is she a plaintiff in this lawsuit? No. Have you ever taken any video recordings,

20 tape-recordings, or photographs of the jets? 21 A. 22 Q. 23 A. 24 Q. No. Sorry. No. Going back to the F-14s for just a moment. Okay. Would you agree that most of the time while those

25 planes were flying prior to the fall of '98 that you were

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00080 1 conference room. Can you just describe the window that you 2 pointed to behind you? 3 A. That window is approximately four feet in height.

4 I would say my windows are three feet maybe. Three feet in 5 height. 6 Q. 7 A. And what about the width? It varies. I assume the windows -- the width of

8 the windows are -- that window is approximately, in terms of 9 the glass, is approximately 18 inches. The windows in my 10 house are approximately 18 inches wide as well. But again 11 they vary because of different size windows depending on the 12 amount of opening. And there are certain windows -- I'll 13 call them windows, glass, that do not open or close at all. 14 They are just pieces of solid glass that's inserted in a 15 hole in the wall. 16 Q. If you wanted to replace your windows in your

17 home, do you think you could afford to do that? 18 A. 19 Q. 20 A. Absolutely not. Why not? I can't afford it. We're talking about -- maybe

21 I shouldn't anticipate your question. But we're talking 22 about thousands of dollars. I had quotes. I don't recall 23 the amount of money right now, but we're talking about 24 approximately $10,000. 25 Q. When did you have the quotes?

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00081 1 A.

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I don't remember. Two years ago. Three years

2 ago. Maybe five years ago. I don't remember. 3 Q. 4 A. 5 Q. 6 A. Do you remember who did the quotes? I don't remember the name of the company. Why did you have the quotes done? Two reasons. Number one, possibly to eliminate

7 some noise. Number two, there is some -- obviously some 8 degradation in the windows, in the casings around the 9 windows, being that they are 30 years old or so. So age, 10 and better insulation from the elements outside. Not just 11 noise, but the elements outside to give better insulation. 12 Q. 13 A. 14 Q. What other elements outside? The cold, the heat, to better insulate your home. So if you replace the windows with windows that

15 you would like, what percentage of the noise from the jets 16 do you think would be eliminated? 17 A. It's some positive number. I wouldn't venture to

18 guess. 19 Q. Five percent, ten percent?

20 MS. HOFHEIMER: Objection. Calls for 21 speculation. 22 A. Yes.

23 MS. HOFHEIMER: He can't answer if he doesn't 24 know. 25 A. You can guess whatever number you want to use. I

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