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 KENNETH A. HILL 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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00005 1 Also, she can't type down what we are both saying 2 at the same time so please don't talk over me and I'll try 3 not to do that with you. So just make sure of that. 4 Also, if you do -- if you don't understand a 5 question that I ask, please say so and I'll clarify it at 6 any time. 7 And then, lastly, if you need a break any time 8 during this, just say the word and we'll take a few minute 9 break then. Just let me know. Okay? 10 A. 11 Q. 12 A. 13 Q. 14 A. Okay. Understand all that? Yes. All right. What is your name and address? Kenneth A. Hill, 925 Lamplight Lane, Virginia

15 Beach, Virginia 23452. 16 Q. 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. 23 A. 24 Q. And what is your occupation? I'm a machinist at Norfolk Naval Shipyard. And how long have you done that? Two and a half years. And what did you do before that? I was in the Navy for 20 years. So you retired? That's correct. Did you go right into that position as a

25 machinist after you retired?

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00056 1 looking for a week or -2 Q.

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No. Not that much. I'm trying to get an idea

3 how often this occurred, how often you experienced it? Just 4 something you never experienced, or is it -5 A. Well, how many people experience jets flying over

6 your home. I couldn't possibly give you day or week or a 7 month. They fly constantly. I mean, you're asking for me 8 to pinpoint a time frame of when the day I moved in until my 9 first overhead flight was. I don't remember. 10 Q. What I'm trying to get -- you just said they fly

11 constantly? 12 A. 13 Q. 14 A. 15 Q. 16 A. Yes. So it's a regular occurrence? Now more than ever, yes. Was it a regular occurrence when you moved in? I considered it that they were doing work ups.

17 That's the only thing I could, you know, understand why 18 sometimes they would fly on a regular basis and then they 19 would have a lull in the action, and then once again fly a 20 bunch of times. You know what I mean? Like, to the best of 21 my recollection, I would take into consideration as that 22 they were doing work-ups to go on deployments, just like a 23 ship would do, do exercises. 24 Q. So you experienced that at some point after

25 moving in?

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00058 1 television? 2 A. 3 Q. If I turned it up.

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What if they were directly overhead, could you

4 hear the television? 5 A. 6 Q. No. And so sometimes they were directly above your

7 house, the jets? 8 A. 9 Q. Absolutely. And other times they were on one side of the

10 house? 11 A. 12 Q. Yes. And other times they would be on the other side

13 of the house? 14 A. 15 Q. Yes. What, if you could, in blocks for example, sort

16 of give me an idea of what the flight path would be over 17 your house and around your house? 18 A. 19 Q. 20 A. 21 Q. I would say two blocks either side. And is that the same today as well? Yes. Was that the same in -- was that the same

22 throughout the period of time you lived in your house? 23 A. 24 Q. Yes. And how would you -- in rough percentages, did

25 the distribution of directly over your house versus two

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00061 1 was between those particular hours you just stated, I 2 couldn't possibly tell you. Because I didn't roll over and 3 look at the alarm clock, I would just go back to sleep. 4 Q. What time did you go to bed? You got up pretty

5 early. 6 A. 7 Q. 8 A. 9 Q. About 9, 9:30. What about the rest of your family? I would say about the same. Were you ever able to sleep through the flights?

10 Or did it always wake you up? 11 A. 12 Q. 13 A. 14 Q. Oh, it wakes you up. And I'm talking about the early '90 time frame? Yes. Wakes you up.

15 Did you experience back then FCLP operations, 16 pattern operations, touch and go over your house. Do you 17 know if you are in that flight path? 18 A. 19 Q. 20 A. I believe I'm in the flight path, yes. Why do you believe you're in that flight path? Because I can see them doing circles over the

21 neighborhood. 22 Q. 23 A. 24 Q. 25 A. And that was back then also? Yes. Is that true today? Yes.

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00067 1 aircrafts were you hearing above -- aircraft were you 2 hearing above your house? 3 A. 4 Q. 5 A. F-14 Tomcats. Anything else? I think they call them EC-2 Hawkeyes. I'm not

6 that familiar with all the jets' names. 7 Q. And did you notice a difference when the F-18s

8 started flying? 9 A. 10 Q. 11 A. Absolutely. Absolutely. Why do you say absolutely? Because the jet engines, they have a different

12 sound to them. The Tomcat whistles more, and a Hornet has 13 more of a thunder sound to it. 14 Q. 15 A. 16 Q. And when did you first notice that change? I would say around '97, '98, approximately. What -- was there some sort of -- is there

17 anything else beyond that difference in terms of the Tomcat 18 has that whistling sound and the F-18 has the thunder type 19 sound you mentioned, anything else about the F-18 that was 20 different, that you experienced? 21 A. 22 Q. 23 A. As in noise or size or appearance? No. I mean noise. No, I would say that would be the fundamental

24 differences, as far as I'm concerned. 25 Q. How does the thunder noise versus the whistling

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00069 1 F-18? 2 A. 3 Q. No. You can't hear the TV.

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Is there a difference between the -- in terms of

4 noise, the F-18CD versus the F-18EF, that you know? 5 A. Well, just recently it seems like it's been

6 getting louder, so I don't know when the CD and the EF are 7 flying, but now when you are out in the yard you have to put 8 your fingers in your ears when they are flying over, I mean 9 because it comes to the point where it's painful. 10 Now, whether or not the planes are flying lower 11 or the CD as you say -- I take that that's a class of the 12 F-18 I guess. 13 Q. 14 A. 15 Q. 16 A. Hornet? Okay. And EF. Super Hornet? Okay. Now, when they are flying and the

17 difference between them, it's hard to tell. I mean, I know 18 now, though, when the planes -- when the Hornets are flying 19 over my house, I have to stop what I'm doing and put my 20 fingers in my ear. 21 Q. What about when the F-18s first started flying --

22 let's first start with this. You said you were -- you 23 estimated '97 to '98 when you first started hearing the 24 F-18s. Why do you pick that particular time? Did something 25 happen? Did you have a party outside?

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00070 1 A. 2 Q. 3 A. 4 Q.

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Well, my house started falling apart. And when did it start falling apart? Approximately '97, '98 time frame. How is the house -- do you attribute the F-18s

5 to causing your house to fall apart? 6 A. 7 Q. 8 A. 9 Q. I would say yes. And in what way was it falling apart? Ceilings were dropping in my home. Are they ceiling tiles or is it drywall ceilings?

10 What is it? 11 A. 12 Q. Drywall. And when you say dropping, do you mean patches of

13 the -- or pieces of the drywall are actually falling? 14 A. Well, I would catch it, you know. They wouldn't

15 actually fall completely to the floor. Like, for instance, 16 my kitchen dropped about a foot, and I had to prop it up 17 with 2-by-4s, because I couldn't push the wood all the way 18 up to screw it in. My bathroom is dropping currently. My 19 den, I caught it dropping, propped it up, screwed it back 20 up, repaired it, it dropped again. 21 Let's see. Cracks developing all through my 22 house. I'd fix them, they would develop again. 23 Q. 24 A. 25 Q. When did the cracks start happening? '97, '98. Is there something about -- you said '97, '98.

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00071 1 Is there something about that time frame? Did you go out 2 and hire a contractor, or do something that makes you 3 remember that time frame specifically? 4 A. 5 Q. 6 '98? 7 A. I guess that's when the jets were getting louder. I -I mean the short question is, why do you say '97,

8 And, for instance, I would walk through my den when the jets 9 were flying and the plaster would fall, literally fall on 10 your head, so -- that's why I attribute it to that. 11 Q. 12 A. Pieces like? Like where seams had been patched or where the

13 house was originally built, where they taped the seams. 14 That would start to fall apart. 15 Q. 16 A. 17 Q. Start to split? Start to split. And joint compound or plaster would fall out on

18 your head or something? 19 A. 20 Q. 21 or -22 A. 23 Q. That's safe to say, granular. -- is there something -- so what did you do about Fall on your head, on your furniture and carpet. Would these be big pieces or little granules

24 this when it started happening? Like, to correct the 25 problem with ceilings stuff, what did you do?

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00129 1 A. 2 card. 3 Q. 4 A. 5 Q.

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You have the BP is a gas card. Texaco is a gas

One of the cars in the auto loan, obviously? Possibly. Okay. And then there is a real estate loan,

6 Washington Mutual, outstanding of '76,100? 7 A. 8 Q. 9 A. Yes. And then a CFCU? I think that was -- I think that was the second

10 mortgage there. 11 Q. For 23,894. And then it says a proposed, which

12 the cash out is 35,650. 13 So were these debts or similar debts in existence 14 back in '97? Or do you know? 15 A. 16 Q. I couldn't speculate. Now that the F-18s -- when the F-18s arrived, you

17 started experiencing that jet noise, how would you describe 18 it? Would you describe it as intolerable? 19 A. 20 Q. 21 A. At times. Okay. What do you mean by intolerable? Well, at times when they are flying directly over

22 your house, that's when it becomes intolerable. When they 23 cease flight operations, it's livable there. 24 Q. Well, in light of the fact that you have

25 operations at times and not at other times, is the overall

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