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 SEAN M. RYAN TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 April 27, 2005 16 17 18 19 Appearances: 20 21 22 23 24 25 SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P.C. By: STEPHEN C. SWAIN, ESQUIRE Counsel for the Plaintiffs U. S. DEPARTMENT OF JUSTICE By: STEVEN D. BRYANT, ESQUIRE DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

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00031 1 there. I can't read that. 2 Q. That's enough.

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3 Did you learn what aircraft noise zone 2 meant? 4 A. 5 Q. 6 A. 7 Q. 8 A. No, I did not. Did you ask? No, I did not. Why didn't you ask about that? Well, because the noise level at the time was

9 bearable. 10 Q. 11 A. How did you know it was bearable there? Because we spent time around in the neighborhood

12 looking at houses. 13 Q. 14 A. How much time did you spend there? Off and on, on different days, we would ride

15 through the neighborhood, and -- I don't know, maybe an hour 16 or two each time we went there. We probably went -- there 17 were a lot of houses for sale in that area. We probably did 18 that 10 or 15 times. 19 Q. You say you went to that neighborhood 10 to 15

20 times for an hour or so each time? 21 A. 22 Q. 23 A. 24 Q. Right. So you spent about 10 to 15 hours there? Basically, yes. Something like that, you know. And where would you spend the time when you were

25 there?

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00039 1 small bits of time, how much would it add up to? 2 A. 3 Q. I don't know. Maybe a year. Okay. So about a year from 1982, what was the

4 overall time period, and then within that added up it would 5 be a year. Trying to get that whole time frame? 6 A. 7 Q. It might have been more than a year. Fair enough. I understand. It's hard to know

8 exactly. But from 1982 what was sort of the final time you 9 would have lived in there? 10 A. 11 Q. 12 A. 13 Q. Until we bought this house. Oh, in '96? Right. So that 16-year period, the various times that

14 you lived in there would have added up to about a year or 15 maybe a little more? 16 A. 17 Q. Right. Did you experience overflights when you lived in

18 that house? 19 A. 20 Q. 21 A. 22 Q. 23 A. 24 Q. 25 A. Yes. And what kind of aircraft was it? Or were they? Well, I guess there were Tomcats, A-6s. Were there F-4s also, or not? I don't know. Not sure. I know there were A-6s because two guys ejected

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00040 1 and one of them landed in my back yard on 23rd Street. 2 Q. 3 A. Well, that's an interesting thing. Yes, it was. Lucky he didn't die because of all

4 the electrical wires. 5 Q. How often did you -- were the overflights when

6 you lived there? 7 A. 8 Q. 9 A. I don't know. Every once in a while. Every once in a while? Yes. Whenever they flew. It's just hard to say,

10 because sometimes they -- they will go three or four days 11 without, or a week without flying over. Then all of a 12 sudden, kaboom, kaboom. You know, it's 24 hours for two 13 days, or whatever. You know, it's hard to say. 14 Q. 15 A. 16 Q. Okay. So -I don't know their flight schedules, you know. And with that, I understand. But I'm just trying

17 to -- what your experiences were when you lived there from 18 that '80 to '96 period, you know, the interspersed periods 19 of time, there were times you're saying the aircraft would 20 be operating even 24 hours a day? 21 A. Oh, I don't know -- I don't remember if it was 24

22 hours a day. It might have been. Every once in a while you 23 get woke up in the morning one o'clock as they launch the 24 alert, or whatever. I don't know, you know. But they fly 25 later than they are supposed to, sure.

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00062 1 farther in time than right now. So Mr. Wall. If you will 2 go to again OCE223278, the very bottom, the section on 3 comments. Just read that. 4 I meant the very last sentence there. I'm sorry. 5 I didn't mean read the whole section. 6 A. 7 Q. Okay. Yes, I have read it. Okay. And does that -- you didn't remember it.

8 Does that refresh your recollection that you spoke with 9 Mr. Wall? 10 A. 11 Q. 12 A. 13 Q. Like I said, I probably did. It would have been you or your wife? It would have been me. Okay. And did you talk to him about aircraft

14 noise, the jets flying over? 15 A. Sir, I don't really remember what we discussed.

16 I mean, a couple of years ago. I don't remember. It might 17 have come up in the conversation. 18 Q. 19 A. Okay. You know. Certainly if one flew over, we

20 probably would have said something, I'm sure. I don't 21 remember. 22 Q. Well, I think you said earlier -- I think you

23 said a couple of times that the jet aircraft overflights, 24 and I guess attendant noise with that, has become 25 unbearable, I think is the word you used, right?

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00063 1 A. 2 Q. It's becoming unbearable, yes.

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Becoming unbearable? Just now, or when did it

3 become unbearable? 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 A. 11 Q. 12 A. Well, I guess it all started around '99. When in '99? I don't know. Probably the summertime. Summer of '99? Yes. Just around there. Are you sure about that? Yes. I think so. Could it have been summer of '98? Well, it was getting -- it was getting worse. I

13 guess around '99. That's my estimate, that it was really 14 getting worse. 15 Q. Well, if -- that is obviously well before

16 Mr. Wall came out, so if it's something that is making life 17 unbearable for you, would that be the kind of thing you 18 would talk to him about. I mean he says there that there 19 are no known adverse environmental conditions that would 20 have negative impact on the value of the subject property. 21 Would you view the aircraft noise as environmental 22 condition? 23 A. 24 Q. 25 A. Okay. Tell you the truth. Yes? Maybe they weren't flying for a couple of days

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00066 1 That's all I can say. 2 Q. 3 A.

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I thought you said it was unbearable before. Not to live in. The noise. I was talking about

4 the noise. 5 Q. 6 A. Yes. It's getting unbearable. But the house, to live

7 in the house, no. 8 Q. Okay. Well, what do you mean by the noise is

9 unbearable then? 10 A. Well, when they fly over, you have got to stop

11 talking. You can't listen to the phone. We wouldn't be 12 able to talk. You'd have to stop what you're doing. You 13 know, the -- you have got to raise and lower the volume of 14 the TV. You can't -- you know, it wakes you up at night. 15 It's getting to be unbearable. 16 Q. 17 A. 18 Q. 19 A. Okay. But then I said, it's -No. Go on? No. That's okay.

20 MR. SWAIN: Wait for the question. 21 THE DEPONENT: Wait for the question. 22 BY MR. BRYANT: 23 Q. You said it's getting to be. What is it getting

24 to be? You were starting to say it's getting to be 25 something?

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00078 1 signature. 2 A. 3 Q. No. I guess we forgot that one.

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Well, what I'm trying to get at is, I'd like you,

4 with that said, I'd like you to review the document and see 5 if you have ever seen it and if you agree to the answers 6 that are in there on your behalf. 7 MR. SWAIN: Would, after you finish the question 8 about the interrogatories, be a good time to take a break? 9 MR. BRYANT: Absolutely. 10 BY MR. BRYANT: 11 Q. 12 it. 13 A. Well, I remember talking to Jack about this. I Take your time reviewing that. Don't let me rush

14 don't know why I didn't sign it. 15 Q. 16 A. 17 Q. Did you see this document? I do believe so. All right. I'd like you to turn -- once you are

18 done -- let me know when you are done reviewing it. 19 A. 20 Q. 21 A. 22 Q. Okay. I have seen it before. And you agree with the contents? Yes. Okay. On page 6, if you would go to -- it

23 discusses in the middle of subparagraph C in the response 24 about aircraft operating in a pattern with several aircraft 25 circling every few minutes, do you experience that at your

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00081 1 heights. I really don't know. 2 Q.

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Okay. What percentage of the flights are

3 directly over your house? Starting in 1999 when you said it 4 became unbearable. 5 A. I would say like about 46, 48 percent. Not all

6 of them. And not quite half of them. 7 Q. So just under half -- just under 50 percent of

8 the flights were directly over your house? 9 A. 10 Q. Right. The small half. I understand. Just under. So the remaining 60

11 whatever percentage? 12 A. 13 Q. 14 A. 15 bit. 16 Q. 17 A. 18 Q. 19 A. 20 Q. And when you say over a little bit, blocks? Sir, I don't know. Maybe a block over. Within a couple of blocks? Yes, sir. Street, you know. So, in other words, all the flights that you They were -Or 55, whatever? They were not -- they were like over a little

21 experienced are either directly over your house or within a 22 couple of blocks of your house? 23 A. From my house being the center. Okay? You

24 probably could go five blocks each way. Okay? 25 Q. And that includes all the flights that you are

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