Document 151
Filed 03/03/2006
Page 1 of 4
IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) CAROL AND ROBERT TESTWUIDE, et al. _________________________________________
No.: 01-201L (Honorable Victor J. Wolski)
PLAINTIFFS' RESPONSE TO DEFENDANT'S SECOND MOTION TO REVISE SCHEDULING ORDER Court's Present Scheduling Order Conclusion of Depositions Feb. 24, 2006 Witness Lists due by March 1, 2006 Dispositive Motions due March 24, 2006 Status Conference April 25, 2006 Oral Argument on Dispositive Motions May 16, 2006 Trial October 16-November 3, 2006 Defendant's Requested Changes Depositions concluded March 22, 2006 Final Witness List March 29, 2006 Dispositive Motions April 24, 2006 Response to Dispositive Motions May 22, 2006 Reply to Dispositive Motions June 5, 2006
The Scheduling Order, which the Defendant wants to change, has been in effect only since January 19, 2006. For reasons that are not the fault of either party depositions could not be concluded by February 24, but the last depositions of Plaintiffs' witnesses are now scheduled for March 9 and March 10. The final depositions will be that of Eileen May, the last of the twelve
Case 1:01-cv-00201-VJW
Document 151
Filed 03/03/2006
Page 2 of 4
Test Plaintiffs to be deposed, Louis Figari, a pilot and resident of Virginia Beach, and Dr. Noral Stewart, designated to rebut one of Defendant's experts. Defendant has taken thirty-four depositions to date. The testimony of Ms. May and Mr. Figari is expected not to diverge in any way from the testimony of the thirteen test Plaintiffs who have testified thus far and the score of other individuals, some Plaintiffs and some non-parties, who are residents of Virginia Beach and who have testified by deposition. Clearly, nothing that Ms. May or Mr. Figari will say can alter either the motion, which Defendant is ostensibly drafting, or Plaintiffs' response to that motion. Similarly, Dr. Stewart's, rebuttal report was submitted to the Justice Department prior to the time Defendant filed the present motion and Defendant has ample time to prepare for his deposition. Because his deposition is a rebuttal to Sanford Fidell it is clear that Defendant will not utilize it in connection with any dispositive motion for summary judgment. Plaintiffs should note that Plaintiffs sent the report of Dr. Stewart to counsel for Defendant within 48 hours of its receipt by Plaintiffs' counsel. That can properly be compared to the deposition of Nicholas Miller, of Harris Miller Miller & Hanson, Inc., taken by Plaintiffs on February 10, 2006. Defendant produced a copy of Mr. Miller's report on February 6, 2006 -- four days before his deposition even though the report is dated June 2005. Moreover, as set out below, on March 1, 2006, defendant expanded the description of Mr. Miller's anticipated testimony three weeks after his deposition. Plaintiffs twice suggested to Defendant that the parties should agree to move the date for the "final witness list" back before the scheduled end of depositions. Plaintiffs argued that if a party adds witnesses after the close of discovery, those witnesses will likely need to be deposed and the Court could expect yet another request to put off the schedule. On the March 1 present
2
Case 1:01-cv-00201-VJW
Document 151
Filed 03/03/2006
Page 3 of 4
deadline for exchanging final witness lists (five days after the deposition deadline) Defendant asked for a delay in that exchange. Plaintiffs advised that we anticipated adding no witnesses and requested that Defendant's counsel provide the names of witnesses whom they already knew they intended to add. Defense counsel then sent a list of seven new witnesses and changed the scope of anticipated testimony of three others. (Exhibit A hereto). Plaintiffs then asked
whether any evidence or affidavits from the newly listed witnesses was going to be used by Defendant in support of its dispositive motion. Defendant answered affirmatively identifying CDR Richard Erie. (Exhibit B hereto). This process will never lead to a conclusion. Plaintiffs suggest that the Court move only the deadlines for depositions and the final witness list to March 10. At the moment the dispositive motion date is set for March 24, 2006. Argument on that motion is set for May 16, 2006. Plaintiffs believe that the Defendant is far along in preparing its motion1 and that there is no reason why it cannot be filed on March 24. However, and alternatively, if the Court feels that Defendant should be given more time to file its dispositive motion, Plaintiffs suggest that the dispositive motion date be moved from March 24, 2006 to March 31, 2006 keeping all other dates in place. Plaintiffs also see no need for the Court to add detail to the schedule by having the briefing run for two months. Thus, Plaintiffs suggested changes are: Conclusion of Depositions March 10, 2006 Final Witness Lists due by March 10, 2006 Plaintiffs accordingly request that Defendant's motion be denied and that changes in the schedule be limited to that set out above.
1
See, Exhibit B. 3
Case 1:01-cv-00201-VJW
Document 151
Filed 03/03/2006
Page 4 of 4
Dated: March 3, 2006
Respectfully, ______/s/_______________________ Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs
Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected] Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles B. Lustig Shuttleworth, Ruloff, Giordano & Swain 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]
4
[email protected], 05:03 PM 3/1/2006, Final Witness Lists Case 1:01-cv-00201-VJW Document 151-2 Filed 03/03/2006
Page 1 of 2 Page 1 of 2
Envelope-to: [email protected] X-Spam-Checker-Version: SpamAssassin 3.1.0 (2005-09-13) on grafias.lunarpages.com X-Spam-Level: * X-Spam-Status: No, score=1.5 required=5.0 tests=AWL,INVALID_MSGID autolearn=no version=3.1.0 Alternate-recipient: Prohibited Disclose-recipients: Prohibited Date: Wed, 01 Mar 2006 17:03:38 -0500 (EST) From: "[email protected]"
Printed for Kieron Quinn
3/2/2006
[email protected], 05:03 PM 3/1/2006, Final Witness Lists Case 1:01-cv-00201-VJW Document 151-2 Filed 03/03/2006
Page 2 of 2 Page 2 of 2
Custodian of Records for REIN database - reserve the right to call this person, if necessary. Joe Czech - may testify regarding noise analyses at NAS Oceana by Wyle Laboratories Modifications to topics of expected testimony of current witnesses: LCDR Wulf (No. 3) and CWO Jenkins (No. 6) - may also testify regarding the reporting and recording of aircraft operations numbers. Nick Miller (No. 25) - potential witness on merits rather than rebuttal exclusively. May testify about 1978 AESO report as well as HMMH studies already mentioned in current list. Capt Keeley (No. 30) - may also testify regarding the other topics in CDR Erie's and Hebert's descriptions. When we do finalize the witness list there may be some modifications to the topics of the testimony, or potentially additional witnesses added or deleted, but as I mentioned these are the expected changes right now. We will also amend the list to reserve the right to call any plaintiff, not just test plaintiffs. Regards, Steve
Printed for Kieron Quinn
3/2/2006
[email protected], 11:45 AM 3/2/2006, RE: Final Witness Lists Case 1:01-cv-00201-VJW Document 151-3 Filed 03/03/2006
Page 1 of 3 Page 1 of 3
Envelope-to: [email protected] X-Spam-Checker-Version: SpamAssassin 3.1.0 (2005-09-13) on grafias.lunarpages.com X-Spam-Level: * X-Spam-Status: No, score=1.5 required=5.0 tests=AWL,INVALID_MSGID autolearn=no version=3.1.0 Alternate-recipient: Prohibited Disclose-recipients: Prohibited Date: Thu, 02 Mar 2006 11:45:45 -0500 (EST) From: "[email protected]"
Steve Are you going to submit any evidence or affidavits in support of Defendant's dispositive motion from any of the undeposed witnesses listed below? Kieron
Printed for Kieron Quinn
3/2/2006
[email protected], 11:45 AM 3/2/2006, RE: Final Witness Lists Case 1:01-cv-00201-VJW Document 151-3 Filed 03/03/2006
Page 2 of 3 Page 2 of 3
======================================================================== At 05:03 PM 3/1/2006, you wrote: >Kieron, > >To confirm our conversation regarding final witness lists, we agreed >to postpone exchanging final witness lists pending the court's >ruling on our motion to extend. > >You indicated that plaintiffs did not intend to add any witnesses to >your list and you asked me to provide the names of those witnesses >we expect to add, which include: > >New witnesses: > >CDR Richard Erie - replaces CDR David Desimone (No. 2) on >list. Topics of expected testimony remain the same. For >clarification, CDR Erie recently replaced CDR Desimone as the NASO >Air Ops officer. > >CDR (ret.) Frank Kraemer, former NAS Oceana Air Operations Officer >relevant period early 1990's - same topics as Wulf and Jenkins > >CDR (ret) Lawrence Hurley, former NAS Oceana Air Traffic Control >Facility Officer - relevant period late 1980's - same topics as Wulf >and Jenkins > >CDR Robert F. Collins, former NAS Oceana Air operations Officer >relevant period late 1980's - same topics as Wulf and Jenkins > >Lloyd Wilkinson - may testify about management of data used by Hank >Wise, if necessary. > >Custodian of Records for REIN database - reserve the right to call >this person, if necessary. > >Joe Czech - may testify regarding noise analyses at NAS Oceana by >Wyle Laboratories > >Modifications to topics of expected testimony of current witnesses: > >LCDR Wulf (No. 3) and CWO Jenkins (No. 6) - may also testify >regarding the reporting and recording of aircraft operations numbers. > >Nick Miller (No. 25) - potential witness on merits rather than >rebuttal exclusively. May testify about 1978 AESO report as well as >HMMH studies already mentioned in current list. > >Capt Keeley (No. 30) - may also testify regarding the other topics >in CDR Erie's and Hebert's descriptions. >
Printed for Kieron Quinn
3/2/2006
[email protected], 11:45 AM 3/2/2006, RE: Final Witness Lists Case 1:01-cv-00201-VJW Document 151-3 Filed 03/03/2006 >When we do finalize the witness list there may be some modifications >to the topics of the testimony, or potentially additional witnesses >added or deleted, but as I mentioned these are the expected changes >right now. We will also amend the list to reserve the right to call >any plaintiff, not just test plaintiffs. > >Regards, > >Steve
Page 3 of 3 Page 3 of 3
Printed for Kieron Quinn
3/2/2006
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms