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 THOMAS H. ASKINS, JR., TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 August 2, 2005 16 17 18 19 Appearances: 20 21 22 23 24 25 HOFHEIMER/FERREBEE, P.C. By: KRISTEN D. HOFHEIMER, ESQUIRE Counsel for the Plaintiffs

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00005 1 A. 2 Q. Okay.

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If you need to take any breaks during this pretty

3 much question and answer period, let me know and we'll stop, 4 whatever we need to do. If at any point in time, Miss 5 Hofheimer interjects, let her -- you pretty much stop what 6 you have to say. Let her talk. She will either have a 7 comment for the record so the court reporter can actually 8 type it down -- if, in fact, Ms. Hofheimer directs you not 9 to answer that's a different story, but pretty much she will 10 make a comment for the court reporter to comment on the 11 record and you can go ahead and answer. 12 A. 13 Q. 14 A. 15 Q. Okay. Any questions? I don't think so. Good. Mr. Askew, can you please tell me your

16 name and current address, right now? 17 A. 18 Q. 19 A. Thomas Hamilton Askins, Jr. And your current home address? 879 Winwood Drive, Virginia Beach, Virginia,

20 23451. 21 Q. 22 A. And is that in -- what subdivision is that in? It's in the Linlier subdivision of Virginia

23 Beach. It's right down the road here. 24 Q. 25 A. How long have you been living at that residence? We built the house in 1976. And I was the

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00006 1 builder and the original owner and still live there. 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 A. Prior to that, what was your address? I lived in Kings Grant area of Virginia Beach. How long were you at that residence? A couple of years. Okay. And prior to that? Kansas City. I moved from Kansas City to

8 Virginia Beach in about 1974. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 Q. 16 A. 17 Q. 18 fly? 19 A. Well, when I went to work with TWA, of course I What's your current occupation or profession? I'm retired. Prior to retirement what was your -I was an air line pilot, Trans World Airlines. And how long did you do that? 32 years. From what year to what year? 1966 until 1998. And what jets were you pretty much qualified to

20 was hired as a flight engineer, which all young, new pilots 21 are; and I checked out on the Convair 880 as a flight 22 engineer, and then I went to the 707 as a co-pilot, and then 23 I went to the 727 as a flight engineer. And the company 24 would go up and down. When the times were good, you'd be a 25 co-pilot, and then you would go back to flight engineer. I

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00008 1 Q.

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What was your degree from Florida State

2 University? 3 A. 4 Q. I had a Bachelor of Science degree/business. Now I'd like to go back to your current

5 residence, since you moved into that residence in 1976. 6 A. 7 Q. Yes. And then we'll work chronologically to the

8 present day. And pretty much most of my questions at this 9 point will be dealing with and concerning aviation jet noise 10 and the flight tracks, the flight path that you see the 11 military jets emanating or coming from based at Oceana. Can 12 you just describe your personal experience when you got 13 here, when you built that home in 1976 and moved there, what 14 in your opinion -- in terms of your specific home, tell me 15 what your experience was in terms of the noise from the 16 military jets that were based at Oceana? 17 A. Well, it was evident the jets were here. We were

18 living near an airport. 19 Q. 20 A. Obviously, you were based at Oceana? I was based at NAS Norfolk. Of course, I knew

21 Oceana was here. I knew all about it, exactly where it was. 22 The home I moved from Kings Grant probably doesn't have any 23 jet noise at all. It's a pretty good distance from here. I 24 don't ever remember hearing a plane flying over that. When 25 I moved here, the jets were here.

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00009 1 Q. 2 A. What jets do you recall?

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Probably the Phantom, F-4s, and the Intruder,

3 A-6. I just don't -- in that period of time, I just don't 4 remember the noise being as intrusive, as loud as it became 5 after all of the Hornets started coming in from 6 Jacksonville. 7 Q. Okay. Let's put it between -- let's try, from

8 19 -- let's then put it in time segments to try to 9 distinguish the time periods we're talking about. So 10 obviously from 1976, did you experience in 1976 overflights, 11 at least, directly over your home or one mile either side? 12 A. 13 Q. Yes. Okay. Did at least the overflights or the flying

14 off the side of your home by a mile or so, did that change 15 at any point in time from 1976 to the present day? 16 A. 17 Q. Yes, it did. Okay. In terms of what point in time. Describe

18 what? 19 A. Well, when the jets are flying sometimes they are

20 gone. They deploy. They fly a different pattern. Might be 21 on the other side of town coming in. We'll go for a period 22 of time and not hear anything. Or very little. 23 Q. Well, let's put it like this: In terms of 1976

24 to the present day let's talk about overflights and planes 25 flying on either side of your home. In your mind did the

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00010 1 frequency of those overflights, or the frequency of the 2 military jets flying near your home, has that increased 3 since 1976? 4 A. 5 Q. 6 A. 7 Q. It seems that in some of the periods it does. Episodic, up and down? Yes. Would that be episodic up and down since 1976 to

8 the present day? 9 A. 10 Q. Yes. You talk about the A-6 and the F-4. What about

11 the F-14, when the F-14 was introduced? 12 A. 13 Q. Yes. The F-14. What was your experience with jet noise or the

14 frequency of the overflights or the military jets flying by 15 your home; did it increase or the noise level change? 16 A. When the F-14s came in relation to the F-4s and

17 A-6s? Probably about the same frequency. The F-14 seems to 18 be a somewhat quieter airplane. 19 Q. 20 A. In comparison to which jet? Probably somewhat quieter than the A-6. It was a

21 little bit louder. The F-4 when it took off on afterburner, 22 it was fairly loud. But I don't think any -- in my opinion 23 neither of these airplanes are as loud as the current Hornet 24 and Super Hornet, which it seems to be louder. 25 Q. At what point in time then would you say did your

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00013 1 trying to watch the television, same thing? 2 A. 3 Q. Yes. Did you have to raise the volume of the TV or

4 not, on occasions? 5 A. 6 Q. Maybe occasionally. What about telephone conversations inside your

7 home? Did you have to pause at times if a jet flew by? 8 A. 9 Q. If it flew directly over the house occasionally. From the period of 1976 to 1998 any time during

10 that period, did you have to call the Naval Air Station 11 Oceana to file -- make a complaint regarding jet noise or 12 regarding the flight tracks or regarding the fact that the 13 flight was just flying too close to your home any time 14 during that period of time, 1976 to 1998? 15 A. 16 Q. No. Do you recall from 1976 to 1998 we talked about

17 the flight overtracks, the noise, the viscidity, maybe the 18 frequency. What about the altitude of the planes. Let's 19 say has that changed from '76 to the present day, the 20 altitude of the planes flying around your home? 21 A. My understanding is they have changed the flight

22 patterns. But you mean from just my observation of it, I 23 couldn't tell. I wouldn't be able to answer that. 24 Q. Now we'll go to 1998 when you retired and you

25 were back at home, and you are associating the F-18 being

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00015 1 F-18s -- the F-14s are still flying in the area too? 2 A. Right. Seemed to have.

3 MS. HOFHEIMER: Can I just clarify, are you 4 saying before 1998? 5 BY COMMANDER YAKONO: 6 Q. Starting in 1998. Let's say, did the flight

7 overtrack, the overflights over your home, did the frequency 8 of those increase? And keeping in mind that the F-14 is 9 still flying around Oceana too. 10 A. 11 Q. 12 A. 13 Q. Did the overflight of -Over your home? -- all airplanes or just -Overflight over your home? Specifically over

14 your home, or let's say a mile each side of your home? 15 A. A mile each side is fairly close. So -- I think

16 so. Seems to have. 17 Q. What about, let's talk about the, again, your

18 experience or your perception of the environmental noise 19 outside and inside your home starting in 1998, and let's go 20 to the present day. Starting in 1998, if you were outside 21 your home having a barbecue, talking to a neighbor, working 22 out in the garden, if you are trying to hold a conversation 23 with your neighbor or your wife, what would be your 24 experience starting in 1998? 25 A. That's if the air planes are flying?

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00016 1 Q. 2 A.

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If the airplane is flying over your home? Well, very, very loud. So loud you can't talk.

3 If you are outside you can't speak on the phone. You can't 4 -- I mean it's so loud that you just can't function. 5 Not too long ago, within the last couple of weeks 6 they were flying over, and every two minutes, two and a half 7 minutes they would come right over and it was just like you 8 couldn't hear anything outside. 9 Inside you are somewhat buffered by the house 10 itself. You can hear. I mean it's not quite as loud inside 11 but it's pretty loud. It's very loud. You almost can't 12 hear the TV set. If you are talking on the phone, they fly 13 right over, you might have to tell them to wait just a 14 second. 15 Q. Earlier, starting quite a while ago you said from

16 1976 even to the present day it's been somewhat episodic? 17 A. 18 Q. Yes. Assuming what you just told me regarding with the

19 F-18 and your experience at least outside with the noise 20 inside and outside of your home, again, it's been episodic? 21 A. 22 Q. Yes. You mentioned every two minutes, whatever, in

23 terms of the jet coming by. How long would that last, would 24 you say? 25 A. It could last an hour or two. Then you have a

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00018 1 to? 2 A.

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Yes. In fact, I can't -- I might have even

3 called them a time or two. I really can't remember. I 4 discussed doing it but just never did it. I think I even 5 tried a couple of times when you couldn't get in. The lines 6 were -- they weren't answering or it was busy, one of the 7 two. 8 Q. Can you recall when you were tempted to make

9 those phone calls what you were experiencing -- what you 10 were experiencing or what was of concern to you? Was it a 11 time of day? Was it the frequency of the overflights. Just 12 the noise? 13 A. About -- I think it was two years ago. Might

14 have been three years ago, they were doing one of the air 15 shows. A jet flew right over my house and they -- something 16 went supersonic. I think it was probably the gases coming 17 out of the engine, and I thought the jet had crashed in our 18 yard. It was like a huge, thunderous crash, and we all just 19 ducked for cover, and I looked up just in time to see the 20 jet taking off here with full afterburner. You could see 21 the trail. It just like disappeared. It was extremely 22 loud. That's when I really -- that was the scariest 23 maneuver that I ever saw. 24 It seems like during the air show practice it's 25 really horrendous because they come over at huge -- at great

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00019 1 air speed with full power at very low altitudes. And it's a 2 little scary. 3 Q. You mentioned FCLPs. Do you know the difference

4 between an FCLP and a touch and go, the difference? 5 A. 6 Q. Yes. Could you, just for the record, tell what the

7 difference is between the FCLP and tough and go? 8 A. The FCLP is carrier landing practice. It's

9 designed to teach the, either the novice aviator or the guys 10 trying to go back and requalify to fly very precisely onto 11 the carrier and to get him acclimated to flying down a 12 precise glide slope. When I was in we used a meatball. I 13 don't know what they use any more. It's monitored by an 14 officer who is the -- they used to call him paddles. Now 15 it's the -- I can't remember what they call him now. 16 Anyway, he's the guy who grades the approach. And then if 17 you pass and you are ready to go, then you go to the ship 18 and land. 19 A touch and go could be the same thing. It's a 20 random event, really. You make your approach, touch down, 21 reconfigure the airplane for take off, add power, go around, 22 take off again. 23 Q. From your home when you are outside your home, or

24 let's say inside your home, but let's start from the outside 25 of your home. If you're standing on -- you're outside, can

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00031 1 usually writes the -- he's written a very comprehensive 2 flight operations scenario that CCAJN recommends. And I 3 have talked to him from time to time about that. 4 Q. What does that state? What does that flight

5 operations that Mr. Stokely drafted, what does that say? 6 A. 7 Q. Pretty much what I said. Are you currently a plaintiff right now in this

8 litigation? 9 A. 10 Q. 11 A. No. And why not? When they started, the lawsuit started, I decided

12 not to do it for a lot of reasons. One is I just didn't 13 want to get involved with it. I just did not want to go 14 through this, really. Depositions and go on and on. I just 15 didn't want to do it. And that was pretty much it. I was 16 former Navy. I just didn't want to do it. 17 Q. Of the recommendations that you, in terms of

18 trying to reduce jet noise, do you believe that -- well, 19 obviously, you don't recall having any one-on-one meetings. 20 Do you believe that any of those recommendations have been 21 acted on by the Navy? Not all -- I mean you can't recall 22 any specific? 23 A. No. I understand they have instituted some

24 flight operations procedures that are designed to make the 25 airplanes fly quieter. I mean I haven't seen them. Is it

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All right. Can you distinguish the noise between

2 an F-18 Super Hornet versus a regular F-18C/D? 3 A. It's hard for me to do it because I can't really

4 tell the airplanes. I can't visually -- I don't know what a 5 Super Hornet looks like compared to a regular Hornet. They 6 look pretty close like the same airplane. 7 Q. What about the A-6? That's the only thing we

8 haven't mentioned, really. 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 A. The A-6 -Let's do A-6 comparison? -- was a fairly loud airplane. In comparison to the F-14? I think of it as being louder than the F-14. How about in comparison to the F-18C/Ds. I don't know of any airplane that is that loud.

16 Maybe the Concorde. 17 Q. Okay. Let's go back to 1998 because you

18 mentioned that's when you recall the Hornet being in the air 19 because you are now retired and at home. When did you 20 officially retire in 1998, do you recall? At least a month? 21 A. 22 Q. 23 A. 24 Q. June. It was June? June 1st. Okay. Now, you mentioned while you were still

25 working for TWA you were either three days home or four days

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