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

Case 1:01-cv-00201-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

CAROL AND ROBERT TESTWUIDE, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No.: 01-201L (Honorable Victor J. Wolski)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE CERTAIN WITNESSES AND EXHIBITS Plaintiffs submit this memorandum in opposition to the Government's motion in limine by which it seeks to exclude at trial: (1) the testimony of Robert J. Smith, (2) some exhibits numbering between 50 and 75 from both Plaintiffs' exhibit list and the joint exhibit list, (3) the testimony of 12 property owner witnesses on Plaintiffs' witness list, and (4) a demonstration of Interactive Sound Information System ("ISIS") software. The basis for the Government's motion as to the Plaintiffs' witnesses, exhibits and the ISIS software are relevance and undue prejudice under FRE 401 and 403. (Motion at p. 3; 7; 9).1 The basis for excluding Mr. Smith's testimony is an alleged failure to make a formal request pursuant to 32 C.F.R. Part 725, a regulation pertaining to the release of official information by Navy personnel in litigation. The motion is without merit.

1 Although the Government cites to FRE 401, that rule simply defines relevant evidence. FRE 402 is the rule that makes evidence that is not relevant inadmissible.

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1. The Witnesses, Exhibits and ISIS Software are Relevant and Admissible FRE 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (emphasis supplied). This is not a high threshold to meet, as the Court pointed out at the pretrial conference just last week. Nevertheless, the Government asserts that the "ultimate issues at trial are whether NAS Oceana aircraft have directly overflown the test plaintiff properties at low altitudes to the point of substantially interfering with the use and enjoyment of those properties, and have diminished the value of the test plaintiff properties." (Motion at p. 4). Any evidence, so the Government argues, that does not bear on those limited issues is not relevant. The Government's position is untenable. Indeed, it does not even pass the red-faced test. The Government fails to correctly identify the elements of a taking by invoking the narrow circumstances enunciated in United States v. Causby, 328 U.S. 256 (1946). Once again, the Government refuses to accept, as it must, the decision in [Argent] as controlling this case. The "ultimate facts" as established by Branning v. United States, 228 Ct.Cl. 240, 654 F.2 88 (Fed. Cir. 1981) and Argent v. United States, 124 F.3d 1277 (Fed. Cir. 1997) include (1) whether the entire course of conduct at NAS Oceana constitutes a peculiarly burdensome pattern of activity, (2) whether the noise and vibration resulting from that activity has substantially interfered with the use and enjoyment of the Plaintiffs' property such that the Government has taken an avigation easement from the Plaintiffs, and (3) what amount of just compensation are the Plaintiffs entitled to receive. Specifically included in these "ultimate facts" is interference with use and enjoyment, which the

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Government argues is not relevant to this case. (See Motion at p. 8)("Accordingly, exhibits and testimony regarding . . . loss of use and enjoyment of property must be excluded."). Encompassed within these "ultimate facts" are a myriad of other facts the proof of which produces relevant evidence. The standard for determining relevance is not limited to "ultimate facts", rather it is as set forth in FRE 401, "any fact that is of consequence to the determination of the action." Indeed, by way of example, the Government stated at the pretrial conference that it intended to raise the statute of limitations and revised noise exposure contours at trial. The facts that bear on these issues include the level of flight activity and resulting noise and vibration in 1981 as compared to the present levels, and the location, altitude, and number of flights, particularly touch-and-go and FCLP patterns. Contrary to the Government's argument, these and many more facts are of consequence to the determination of this case, and evidence as to these facts is relevant and should be admitted. At the pre-trial conference, the Court admonished the parties that it intends to adopt a broad view of relevant evidence because this trial is a "test case" for the remaining two thousand plus properties. Not only does the Government's motion run contrary to the Court's admonition, but it proposes a constriction of relevant evidence not contemplated by Rule 401 of the Federal Rules of Evidence. Plaintiffs' Witnesses The Government focuses on two of the twelve witnesses, Karen Green and Charles Nash. Herk Stokely, who the Government also proposes to exclude, is barely mentioned beyond his appearance on the list of those to be excluded. Herk Stokely, as the excerpts from his deposition and summary contained in Plaintiffs' opposition to summary judgment (Ex. A) demonstrate, has lived in his present home since 1967. He has also flown touch and go operations at Oceana as a Naval

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aviator. Mr. Stokely is also an aeronautical engineer who is now retired from the Naval Aviation Depot in Norfolk, Virginia. He has taken video taped decibel readings of the flights in question in this proceeding showing not only the single event level of noise over his property, but the altitude and frequency of such overflights during flight operations. Mr. Stokely is also personally familiar with the Levensons who are test case Plaintiffs. (Ex. B, Depo. pp. 26, 27). He has spent many hours at their home. (Id.) By contrast, the Government has designated excerpts of the deposition of Gregory Whitley, a non-test case Plaintiff, who has never been to the home of the Levensons and does not know them, but believes he would know Hal Levenson's face if he saw him. (Ex. C, Depo. p. 59). The Government's effort to exclude Herk Stokely, but to include Gregory Whitley as witnesses in this case is duplicitous at best. The same principle applies to the Government's motion to exclude Thomas Askins. Mr. Askins is a former Naval aviator and commercial airline pilot. (Ex. D). He has also taken decibel meter readings, and video tapes of pattern flights in the vicinity of and over his home in Virginia Beach. (Ex. E, Depo. pp. 21, 22). Jeffrey McCreary lives within a block of the Levensons. In fact, his home is much closer to the home of a test case Plaintiff than any of the fact witnesses named by the Government in this proceeding. Similarly, all of the remaining fact witnesses the Government proposes to exclude, have experienced aircraft operations over and around their properties before and after the arrival of the F/A-18 C/D aircraft at Oceana. The evidence in this proceeding is expected to be, from these fact witnesses and others, that the jet aircraft operating out of Oceana do not adhere to tightly controlled flight tracks akin to trains

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on a track, but rather vary their flight patterns over a broad area around Oceana, affected by pilot skill, wind and weather conditions, and the number of aircraft in a pattern. The witnesses selected to testify on behalf of the test case Plaintiffs are not so numerous as to burden the Court with unnecessarily cumulative evidence. Their testimony is particularly important in view of the Government's express intention to adduce contrary evidence in an effort to convince the Court that its aircraft do adhere to tightly controlled tracks. The testimony and exhibits of the witnesses the Government proposes to exclude quite clearly has a tendency to make the fact of low level, frequent and loud overflights and flights in the vicinity of the test case Plaintiffs' homes more probable than not in full satisfaction of Rule 401 of the Federal Rules of Evidence. Other than its bald assertion that the twelve witnesses it proposes to exclude have no relevant testimony or evidence to adduce, the Government has offered no support whatever for the exclusion of Thomas Askins, Nancy Darling (Ex. F), Louis Figari (Ex. G), William Gilbert, Robert Goodwin (Ex. H), James Gregory, Carl Helvie (Ex. I), Randy Keel, Jeffrey McCreary (Ex. J) or Charles Nash (Ex. K). The Government's assertion that a witness must either know a test case Plaintiff or a test case Plaintiff's property in order to possess relevant evidence is baseless and without foundation. To the extent the Government's motion implies that Herk Stokely and Thomas Askins do not possess such knowledge, its motion is false. The Government also challenges the testimony of these witnesses under FRE 403, which states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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The Government asserts that the testimony of these witnesses, even if relevant, is redundant and should be excluded. The Government fails to acknowledge that the so-called "redundancy," these witnesses who live near test case plaintiffs will testify to experiences identical to the test case plaintiffs, corroborates testimony that the Government challenges. The Government has named witnesses for trial who will testify that the noise exposure of the test case Plaintiffs is not that great, flights rarely pass over or near the test case Plaintiffs' properties, and in other similar ways contrary to the testimony of the test case Plaintiffs themselves. These witnesses corroborate that the flights are over and near their properties despite the "flight tracks" and the noise is as disruptive to the use and enjoyment of their properties as the test case Plaintiffs say. This is not redundant. The Government makes this testimony necessary. As to any waste of time, the Plaintiffs plan to present their case in less time than the Government, despite all these "redundant" witnesses. There is no basis to exclude this relevant testimony under FRE 403. Plaintiffs' Exhibits The Government makes the same arguments regarding the 50 ­ 75 exhibits that it seeks to exclude as it did with regard to the Plaintiffs' witnesses. The same narrow construction of relevance that dooms the Government's argument as to the witnesses does the same as to the exhibits. Moreover, the Government makes sweeping broad conclusions that should only be made in context, not in the abstract in a motion in limine. See, PR Contractors, Inc. v. U.S., 69 Fed.Cl. 468, 469-70 (Fed.Cl. 2006), quoting . Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir.1997)("Thus, while ["t]he prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered ···· [s]ome evidentiary submissions [ ] cannot be evaluated accurately or sufficiently by the trial judge in such a procedural environment.").

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A clear example of the deficiency of this argument is the reference to newspaper articles. The Government states that they "are clearly hearsay and should be excluded on this ground."2 Of course, there are more than 20 exceptions to the hearsay rule in the Federal Rules of Evidence, and many more nuances to those exceptions. Moreover, newspaper articles are admitted at trials. See Wathen v. U. S., 208 Ct.Cl. 342, 527 F.2d 1191, 1199 (Ct.Cl. 1975)(newspaper articles admitted to demonstrate discredit to the IRS; also admitted over hearsay objection to prove the truth of what was asserted in the articles.). Similarly, the evidence that the Government purchased easements over surrounding properties is relevant for many purposes, including, the value the Government itself has placed on easements. Admiral Fallon's testimony before Congress included statements about the litigation and the Government's estimate of the amount it would have to pay if it lost at trial. This evidence is also relevant to the value of the easements. Virtually every exhibit is probative of a fact that is of consequence to this case. The Government's view of relevance is too narrow and is not the law. ISIS Software Plaintiffs began making arrangements with the Government to use ISIS to demonstrate noise exposure at trial. Those arrangements never came to fruition and Plaintiffs have not indicated that they will even use ISIS. The Government has made extensive use of the ISIS noise program before community groups, civic associations, and the City of Virginia Beach as a demonstration of the community noise exposure generated by the F/A-18 C/D and other jet aircraft. For the first time, in this motion, it argues that ISIS does not replicate the noise generated by the F/A-18 C/D. Plaintiffs object, however, to the Governments' suggestion of a site visit to hear the jets as they fly. Plaintiffs have no confidence that the flights on any given day or part of a day will be

2 This is the only mention of a basis for exclusion other than relevance or undue prejudice with regard to the witnesses or

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indicative of the noise exposure to the Plaintiffs' properties. The Government has control over flight activity and can manipulate patterns, altitude, power settings, flaps, landing gear and any number of factors in the operation of its aircraft. If such a site visit is made, Plaintiffs reserve the right to use ISIS to demonstrate noise exposure consistent with the noise levels in the testimony of the witnesses and the Government's publications. 2. Robert Smith Can be Called to Testify 32 C.F.R. 725 is inapplicable in this case. Several Navy witnesses are expected to testify in this case, and the Government has never invoked the procedures under the regulation. The regulation was promulgated to protect federal employees from being compelled to obey a subpoena. In this case, numerous federal employees from the civil service as well as active duty Navy personnel have been deposed, responded to discovery, and are listed as witnesses to appear at trial without invoking any unique procedure. Indeed, Robert Smith has been identified as lead counsel for the trial of this case and is expected to be in Court throughout the entire trial. The Government has also identified two Navy lawyers to testify in this case, Jude Klena and John Lauterbach. Although the Court, in Sparton Corporation v. United States, 44 Fed.Cl 557 (1999), imposed a three part burden upon the plaintiff to demonstrate (1) that no other means existed than to depose the government attorney to obtain the information sought, (2) that the information sought was relevant and non-privileged, and (3) that the information was crucial to the preparation of the plaintiff's case, the attorney involved in that case was not involved in matters crucial to the case.

exhibits.

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In this case, the Government advised the Court at the pre-trial conference that it intends to introduce evidence of revisions to the noise contours at Oceana after this suit was filed. Robert Smith has played an integral role in every aspect of noise analysis from the date the F/A-18 C/Ds were transferred from Cecil Field, Florida, beginning in 1998 to the present. He has also been an active participant in the decision to explore the revisions of the noise contours, the studies and interviews leading to the revisions of the noise contours, and the publication of revised noise contours. In view of the Government's express intention to present evidence in its case regarding a project in which Mr. Smith played a substantial supervisory role, Plaintiffs urge the Court to reserve a decision on whether or not Mr. Smith can be called to testify until the Government rests. At that time, if Plaintiffs propose to call Mr. Smith to testify regarding the Government's revisions of the noise contours, the Court will be in a better position to determine the necessity and propriety of his testimony with regard to those revisions. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request the Court to deny Defendant's Motion in Limine to Certain Witnesses and Exhibits. Respectfully submitted,

/s/ Jack E. Ferrebee 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

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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, Swain Haddad & Morecock 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]

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