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 EDDIE WATERMAN 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 please wait until I finish my question before responding, 2 and if you need any break during this period, just say the 3 word and we'll go off. Off the record. 4 And if you don't understand the question that I 5 ask, please ask me to clarify it and I'll be happy to do so. 6 7 A. 8 Q. Do you understand all that? I understand. All right. Great.

9 Please state your name and address? 10 A. Eddie J. Waterman, 2244 Windy Pines Bend, in

11 Virginia Beach, Virginia. 12 Q. 13 A. 14 Q. 15 A. 16 Q. And how long have you lived there? It will be 12 years in June. And did you live in Virginia Beach before there? Yes. You did. How long have you lived in Virginia

17 Beach? 18 A. I grew up in Norfolk and moved -- I have been in

19 Virginia Beach about 35 years. 20 Q. Before we get into all that, could you please

21 state your occupation? 22 A. I'm currently retired from the publishing

23 industry. 24 Q. 25 A. What did you do in the publishing industry? I was in sales and marketing.

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00015 1 A. 2 Q. 3 A. 4 Q. Yes.

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Is it still a three-bedroom two-bath house? Yes. Do you have any association with the Navy in your

5 career? 6 A. 7 Q. No. Are either of your parents, were they in the

8 Navy, or any other military, for that matter? 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. No. What about your wife? No. Her family, none of that? None. What about any of your kids? How many children

15 do you have? 16 A. 17 Q. 18 A. 19 Q. 20 A. 21 Q. Just one daughter. Just the daughter? Yes. Was she in the military at all? No. Did you -- were you aware of -- you lived here

22 for 35 years you said. I assume you were aware of the air 23 station when you bought the house in '93? 24 A. 25 Q. Yes. And were you aware of the jet operations out of

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00019 1 A. 2 Q. 3 A. 4 Q. Correct.

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So that would have been '92 to '93 or something? Yes. Did you experience jet noise, or aircraft noise

5 of any kind in the first house at Five Point Road? 6 A. 7 Q. 8 A. 9 Q. No. You did not? No. What about the -- and jet noise, could you see

10 aircraft from your house when you lived there? 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. No. No. What about the house at Whisper Circle? No. What about the townhouse off of Wolfsnare Road? Yes. Yes. Okay.

17 And it was immediately preceding '93, so '92, 18 '93. Did you -- how did the jet noise you experienced off 19 of Wolfsnare Road -- how did it compare with that -- the 20 house you live in now when you first moved in from '92 to 21 '95, '97, whenever that was. 22 A. I would say it was probably about one-tenth of

23 what it is now. 24 Q. Well, I'm not so much asking that. I'm asking

25 you to compare the townhouse that you lived in, the third

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00022 1 Q.

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Got it. But it was something that obviously

2 impacted a conversation you were having? 3 A. 4 Q. Yes. Now, were you aware that the house on Windy Pines

5 Bend, that it was in a noise zone when you bought it? 6 A. 7 Q. 8 A. Yes. You were. And how did you become aware of that? My wife brought it to our attention on the sales

9 contract that was an area that we had to initial. 10 Q. Okay. And did you -- it sounds like there

11 weren't very many neighborhoods -- well, tell me. I mean 12 Pineridge was a neighborhood that met the criteria that you 13 mentioned earlier. Were there any other neighborhoods that 14 met the criteria that were close to your daughter? 15 A. I'm not sure, because we really didn't look that

16 long when this came on the market, and we more or less 17 proceeded with that because of the fact that it was a good 18 deal and it did meet the criteria so we had -- if we hadn't 19 found that, I'm sure we would have looked at a lot more 20 homes in the neighborhoods. 21 Q. Now, the Southgate where you looked at about four

22 houses, or three houses, whatever it was, is it located in a 23 noise zone as far as you know? Or was it at the time? 24 A. 25 Q. I don't really know. What sort of research did you do into Pineridge

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00023 1 to evaluate what kind of jet noise was happening there in 2 1993? 3 A. 4 Q. We didn't do any research. Did the noise at, when you were at the townhouse,

5 if you were outside grilling, or whatever, on those 6 occasions where it was directly over your house, it would 7 impact the conversation or that kind of thing, did you 8 consider that something that was bothersome? 9 A. No, because of the elevation of the aircraft in

10 that particular part of the city. It was up pretty high, so 11 it really didn't -- we didn't consider that a factor and -12 but it may be because we knew that we weren't going to be 13 there very long. 14 Q. 15 A. In the townhouse? That's correct. We purchased the townhouse from

16 my daughter to help them to buy a larger house in the area 17 that they moved to. So rather than renting it out right 18 away, we moved in there for convenience. 19 Q. But your experience with the jet noise when you

20 lived there, was it something you -- that you didn't like, 21 or how did you feel about it? You said the altitude was 22 pretty high, the elevation of the jets were pretty high, I 23 think you described it? 24 A. 25 Q. Yes. So did that -- how did that affect you? Was it a

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00024 1 problem? Did you -- what did you think of it? 2 A. It wasn't a problem for us at the time, because

3 the jets very seldom flew directly over. And that was the 4 only time when it was rather bothersome. 5 Q. So when they flew directly over, it was

6 problematic, and presumably if it -- the lower the altitude, 7 it would have been a problem? 8 A. 9 Q. I would say yes. You would anticipate it. So in light of that

10 knowledge, why didn't you investigate what the jet noise 11 exposure was and overflight exposure was with the house at 12 Windy Pines Bend to see if -- see if it's a lower altitude 13 than what you experienced before, to see if there were a 14 greater number of direct overflights, that kind of a thing? 15 A. It was something that we didn't actually think

16 about. We were out there on several occasions, so obviously 17 there weren't any planes flying because we didn't hear 18 anything. 19 Q. You say you were out there on several occasions.

20 Can you define that for me, about how many times that would 21 have been? 22 And if I can interrupt, when you say several 23 occasions you mean before you put in the offer, before you 24 closed on the house? 25 A. Several occasions before we actually put in the

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00025 1 offer. 2 Q. 3 A. 4 Q.

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Okay. About how many times is several occasions? I would say approximately three. And I know we're going back 13 years, but were

5 those three times, approximately three times, were they on 6 the weekend, during the week? Do you remember? 7 A. 8 Q. I don't remember. Okay. But you didn't experience any overflights

9 on any of those approximately three times that you went out 10 there? 11 A. 12 Q. No. And when you went out those three times, about

13 how long did you spend out there approximately? 14 A. 15 Q. 16 A. 17 Q. Approximately an hour. An hour each time or so? Yes. And on those three times, did you go into the

18 house each time, or were you driving through the 19 neighborhood? Did you have a picnic? What were you doing? 20 A. I remember distinctly on one occasion we went

21 into the back yard because it backs up to some woods and a 22 horse farm adjacent, and we wanted to check out the fencing 23 situation and what it might cost us to put in a privacy 24 fence. 25 On another occasion, we did look at the inside of

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00026 1 the house again. And I do recall riding around the 2 neighborhood one time. 3 Q. Now, the -- just for clarification, when you were

4 thinking about the privacy fence, was that a concern of the 5 horses coming on the property or something, or what was -6 are you just -- what was your intent there? 7 A. Actually, there is a chain link fence there, but

8 it was -- it was open. And we were looking into putting a 9 privacy fence where no one could see through it, the chain 10 link. 11 Q. 12 A. 13 Q. So for aesthetic purposes and privacy purposes? Yes. What -- you said your wife was a real estate

14 agent part-time. What was the time -- what years, period of 15 years was she doing that? 16 A. Off and on for approximately five years prior to

17 us purchasing that house, purchasing the house on Windy 18 Pines. 19 Q. Did you ever have any discussions about not

20 wanting to live too close to the base because of jet noise? 21 A. No. Because we actually never -- we were never

22 exposed to aircraft noise to any point where it really 23 affected us adversely. I know that we, on the contract we 24 initialed something that said I think it was D2, but we had 25 no idea what that meant in terms of the noise level.

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00036 1 Q.

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Did you talk to the appraiser when he or she came

2 to your house and inspected it? 3 A. 4 Q. 5 A. 6 Q. 7 A. 8 Q. Yes. You did. Was it a he or a she? It was a he. Do you recall his name? (Deponent shook head.) Do you have any -- in the records that you looked

9 at, is there any reference or documentation of who the 10 appraiser might have been or the company that he was 11 associated with? 12 A. 13 Q. No. Now, when you moved into the house in 1993, when

14 did you start experiencing jet overflights? 15 A. I would say probably within -- within several

16 months. Within two to three months. 17 Q. Okay. And tell me about that experience with the

18 overflights? 19 A. Initially, we didn't feel that it was a burden

20 unless we were outside, either working in the yard or 21 cooking out. We could hear the aircraft inside. But it 22 wasn't to the point where we had to talk louder on the 23 phone, or we had to cut the TV up. 24 Q. Where were the overflights in relation to your

25 house? And when I ask that, I mean were they directly

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00037 1 flying over your house, or a certain distance away? 2 A. They were flying on a lateral basis, and only on

3 occasion did they fly directly over. 4 Q. When you say a lateral basis, it was to the side

5 of the house, about how many blocks, if you can -- away from 6 your house, if you can describe that? 7 A. I don't know how I could describe that in terms

8 of blocks, with the aircraft being up in the air. It's kind 9 of hard to judge. 10 Q. 11 that? 12 A. 13 Q. I don't know how to judge that. Is it -- today are the flights in the same sort Well, was it a mile away and up, or closer than

14 of rough location laterally to your house? 15 A. 16 Q. 17 A. Today, it's more over my house. Okay. I made a note as of the 1st of April, the

18 aircraft are flying probably 75 percent more over my house 19 than they were since we've been there the whole time. 20 Q. So when did that start, this 75 percent, you

21 know, rough -- obviously, it's a rough number, directly over 22 your house, when did that begin? 23 A. 24 Q. 25 A. The 75 percent I would say the 1st of April. Oh, so -- and that's why you documented it? Correct.

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00043 1 Q. -- outside.

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2 Now, what about when the December of '98 to April 3 Fools Day 2005, when the flights were directly over your 4 house, how would that impact conversations outside? 5 A. 6 Q. We had to stop talking until they flew away. Let's go inside the house now. When you had the

7 lateral flights starting December of '98, could you still 8 listen to the television, talk on the phone, that kind of 9 thing. 10 A. Yes. But we had to speak louder that I recall,

11 then we had to either cut the TV up louder or -- you're 12 talking about lateral flights, right? 13 Q. 14 A. Yes, I am. It was certainly bearable, but it was

15 uncomfortable unless we talked -- spoke louder, or cut the 16 TV up louder. 17 Q. What about, when you had direct overflights at

18 that time, December '98 to April 1st of this year, directly 19 over your house? How would that impact the TV, phone 20 conversations? 21 A. We just -- we stopped talking on the phone until

22 they passed over and in terms of the TV, listened to the 23 radio, we just didn't hear it. 24 Q. 25 A. No matter how high you turned it up? Well, we didn't turn it all the way up as far as

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00044 1 it could go. 2 Q.

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How would you -- I think you said bearable is the

3 word you used. How would you describe the jet noise when 4 you first moved into the house? 5 A. It was definitely bearable. It was uncomfortable

6 at times outside. It really didn't affect us inside the 7 house. It didn't adversely. Just strictly outside. 8 Q. And how would you describe it since, from the 1st

9 of December of '98 through April 1, 2005? If -- you know, I 10 should have clarified that too. 11 Has it been, the noise impacts, consistent from 12 April 1st -- sorry, December 1, 1998 to April 1, 2005? 13 A. 14 Q. 15 A. 16 Q. Has the noise been consistent? Consistent from that time period? Yes. It has. So with that said, how would you

17 describe the noise impacts and living there in that house in 18 that time period? 19 A. I would say it was at times extremely

20 uncomfortable. Particularly when the aircraft flew right 21 directly over the house. 22 More so outside than inside. 23 Q. And how would you describe it from April 1st,

24 2005, until today? 25 A. I don't get to sleep late any more, and as a

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00045 1 result of the aircraft flying directly over the house. 2 Q. I gather you would prefer to sleep late if you

3 could? 4 A. 5 Q. 6 A. 7 Q. At times. How do you define sleeping late? I would say probably up to 9 o'clock. 9 a.m. That can be a very nebulous term. When I was in

8 college sleeping late could mean 2 in the afternoon. 9 So with that said, what time do you wake up now 10 when the flights happen? What time does it wake you up? 11 A. 12 Q. Anywhere between 8 a.m. and 9 a.m. Okay. Now, preApril 1st, 2005, could you sleep

13 late, to 9 a.m.? 14 A. 15 Q. Yes. Other than the sleeping late, sleeping until 9

16 a.m., TV, phone, any other impacts when you are indoors? 17 A. We've had several pictures to fall off the wall

18 from vibration. 19 Q. 20 A. Has anything broken? Nothing has broken. The glass, actually. The

21 position that it fell on the carpet, it didn't break. 22 Q. That's good. When did -- when did that start

23 happening? 24 A. That -- that's been happening on and off for four

25 to five years I know.

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