Free Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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Filed 12/16/2004

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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)

JOINT STATUS REPORT Pursuant to this Court's Order on September 20, 2004, the parties, by and through undersigned counsel, respectfully submit this Joint Status Report. This Report does not address all topics set forth in Appendix A of the RCFC, which were addressed in the Joint Preliminary Status Report filed with the Court prior to the Status Conference on May 25, 2004. The Report only addresses those topics discussed by the parties in accordance with the Court's Order of September 20, 2004. For those subjects on which the parties do not agree, the parties submit their separate respective positions. 1. Parties for Test Case. Counsel met and conferred on several occasions and have

agreed that each side will select 7 plaintiffs to be tried together in a test case. The parties have agreed to limit the first test case to properties near NAS Oceana and these properties have been selected from various geographical locations near NAS Oceana. Plaintiffs selected the following test plaintiffs: Al and Mona Saferstein Victoria Rister Hal and Elaine Levenson Carroll Lindsay 748 Virginia Dare Drive 710 High Point Avenue 2004 Brickell Court 2709 East Kings Road

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Herbert and Betty Van Nostrand James and Virginia Riddick Eddie and Elizabeth Waterman

305 Corvette Lane 1805 Loganberry Court 2244 Windy Pines Bend

Defendant has learned from the property tax records that one of plaintiffs' selected properties, 748 Virginia Dare Drive, owned by Al and Mona Saferstein, may have a significant construction defect. Their home is apparently constructed with Dryvit, an exterior finish similar to stucco. It has been held that Dryvit is "intrinsically defective" even if installed correctly. Bay Point Condominium Ass'n, Inc. v. RML Corp. and Dryvit Systems, Inc.,57 Va. Cir. 295, 313 (2002). Moreover, the tax records indicate that the Saferstein property is having " Dryvit problems." As such, defendant is concerned that the inclusion of this property in the test case may create a diversion at trial that would make it inappropriate for the test case. Additionally, the parties exchanged test plaintiff selections on December 15, 2004, and therefore, have not had the opportunity to investigate the other side's selections. Consequently, defendant is not yet aware if the other six properties plaintiffs selected may have similar maladies that would make them inappropriate for the test case. Defendants selected the following test plaintiffs: William and Nancy Wagner Sara Hoag William and Betty Capps Gerald and Wilma Fox Kenneth and Tammy Hill Michael and Diane Leary Sean and Graciela Ryan 2. Proposed Schedule. test case: January 7, 2005 February 15, 2005 Joint Preliminary Status Report Exchange initial disclosures pursuant to Rule 26
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402 Vanderbilt Avenue 1301 Brant Road 409 Pallets Road 2513 Torrey Place 925 Lamplight Lane 3209 Chicory Court 1856 Pathfinder Drive

The parties jointly propose the following schedule in this

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February 21, 2005 March 14, 2005 May 15, 2005 June 1, 2005 June 15, 2005 July 7, 2005 August 15, 2005

Serve written discovery Exchange Preliminary Fact and Expert Witness Lists Exchange Expert Witness Reports Conclude Written Discovery Deadline for Fact Witness Depositions Exchange Final Fact and Expert Witness Lists Deadline for Expert Witness Depositions

September 30, 2005 Deadline to File Dispositive Motions Counsel request that the Court set a trial date, but that trial take place at the United States Courthouse in Norfolk, Virginia. 3. Plaintiffs Not Named in Test Case Aside from the parties involved in the test case, defendant believes that there are additional plaintiffs that fail to state a viable claim. Defendant intends to file a motion to dismiss with respect to these properties as more information is gathered through discovery. This Joint Status Report was prepared by counsel for the plaintiffs and counsel for the defendant. To expedite the filing of this joint status report, defendant's counsel will electronically file it on behalf of both parties.

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Dated: December __, 2004

Respectfully submitted, _________/s/_______________________ Kieron F. Quinn Quinn, Gordon & Wolf, Chtd. 40 West Chesapeake Avenue Towson, MD 21204 (410) 825-2300 (410) 825-0066 fax [email protected] __________/s/______________________ Julia Evans Environment & Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 514-4485 (202) 305-0267 fax [email protected] Attorney of Record for Defendant pursuant to Rule 83.1(c)(1) Of counsel: Steven D. Bryant Environment & Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 (202) 305-0506 fax [email protected] Robert J. Smith Mary Raivel Page Turney Navy Litigation Office 720 Kennon Street Rm. 233 Washington Navy Yard, D.C. 20374

Attorney of Record for Plaintiffs pursuant to Rule 83.1(c)(1) Of counsel: Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 40 W. Chesapeake Avenue Suite 408 Towson, Maryland 21204 (410) 825-2300 [email protected] Charles R. Hofheimer Jack E. Ferrebee Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain
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Lawrence Woodward Shuttleworth, Ruloff, Giordano & Swain 4525 South Boulevard, Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected]

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