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

Case 1:01-cv-00201-VJW

Document 173-2

Filed 05/26/2006

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Betty Capps - Test Case Plaintiff Betty Capps lived in Virginia Beach from 1975, (Exhibit 1B, Capps Deposition p. 5) when she was twelve years old, through 2005 when she and her husband, William, moved to Chesapeake, Virginia (Exhibit 1C, Capps Answers to Interrogatories 10/31/05 p. 6). Mr. and Mrs. Capps moved to the Point O'Woods neighborhood at 409 Pallets Road when recently married in 1980 or 1981. When Mr. & Mrs. Capps first moved in to Point O'Woods they rented their present house for more than eleven years. During that time they experienced direct overflight from jets. Despite that, they purchased the house in the early 1990s. When Mrs. Capps gave her deposition in April of 2005, about 40% of the jets that were flying near her house were flying directly over her house and most of the remainder were flying within a ten block radius of her house. In the 1980s the percentage of planes that were direct overflights of her house was in the 10-20% range (Exhibit 1B, Capps Deposition. p. 23-24). Q. And in those first, '81 through '83 when there was a high level of operation, then it went down, what impact did that have on your daily lives? If you were outside, could you talk to one another? Yes. You could talk without having to talk loud or anything of that nature when the jets were going over your house? Yes. Did you have to turn up the volume of your television, or anything of that nature, at that time frame? I don't remember ever having to do that at that time, no. Now, I think you said '99 is when the operations spiked again. Is that the time you said? Or when did it spike again? To be honest with you, I never paid any attention until the noise level grew to an uncomfortable level. We always could operate our lives like we've always operated them until after '99. And when you say after '99, can you tell me what month when that happened? I can't tell you the month. I think it was in the fall. Fall of? '99.
Exhibit 1A - Betty Capps Deposition Summary - Test Case Plaintiff - Page 1 of 2

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Case 1:01-cv-00201-VJW

Document 173-2

Filed 05/26/2006

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Q. A.

Okay. And why do you think it was the fall of '99? Why does that jump out to you? The first time I was out in the yard talking to my brother, and for the first time ever we could not communicate. We could not talk. And I remember looking up, going, what is that? And it just shocked me.

(id. p. 26-27) Prior to the arrival of the F/A-18 in approximately 1999, she could always have phone conversations when the jets were overflying her house. When the F/A-18s arrived, she could no longer conduct phone conversations. In addition, vibrations from the F/A-18s caused photographs and the like to vibrate to the edge of a table and fall. That never happened with the F-14s or the A-6s. (id. p. 62-64). She believes that her property value has been affected since 1999 because of the jet noise: Q. A. Q. A. Do you believe your property value has diminished because of the jet noise? Yes. Why do you believe that? Because it's -- when you discuss with people about the noise, they go, How do you stand to live in that neighborhood? And I think people think the same thing when they are thinking about purchasing a home out there.

(id. p. 71). At one point she had taken to wearing earplugs, but they caused her ears to bleed and the doctor told her to stop using them. (id. p. 73). Her husband works shifts so sometimes he sleeps during the day. If the planes were flying patterns he was not able to sleep (id. p. 76). In 2005, Mr. and Mrs. Capps sold their home and moved to Chesapeake, Virginia. Their decision to move was "based solely on the substantial increase in jet noise in 1999 and subsequent years from aircraft operations at NAS Oceana that made living in their home intolerable" (Ex. 1C, Capps Answers to Interrogatories 10/31/05 p. 6).

Exhibit 1A - Betty Capps Deposition Summary - Test Case Plaintiff - Page 2 of 2