Free Response to Motion - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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Filed 03/03/2006

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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

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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

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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.

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See, Exhibit B. 3

Case 1:01-cv-00201-VJW

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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]

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