541 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: TRIAL TERM PART: 91. 2 - - - - - - - - - - - - - - - - - -X MICHAEL GAMBALE, 3 Plaintiff, 4 - against - Index No. 5 18694/09 400 FIFTH, and PAVARINI McGOVERN, LLC., 6 Defendants. 7 - - - - - - - - - - - - - - - - - - -X 8 141 Livingston Street 9 Brooklyn, New York 11201 10 January 31, 2014 11 B E F O R E: HONORABLE DEVIN P. COHEN, A.J.S.C. 12 A P P E A R A N C E S 13 SACKS AND SACKS LLP 14 Attorneys for the Plaintiff 150 Broadway 15 New York, New York BY: JAMES J. McCRORIE, ESQ. 16 Of Counsel 17 LEWIS, BRISBOIS, BIGGAARD & SMITH, ESQS. 18 Attorneys for Defendants 77 Water Street 19 New York, New York BY: ALAN KAMINSKY, ESQ. 20 Of Counsel 21 22 23 24 LISA MINELLI 25 OFFICIAL COURT REPORTER Plaintiff - Missun - Cross 542 1 THE COURT: Are we ready? 2 MR. McCRORIE: Yes. 3 THE COURT: Bring the witness in. 4 THE COURT OFFICER: All rise. 5 (Whereupon, the jury entered the courtroom.) 6 THE COURT: Be seated. Good morning. I got 7 used to a certain pattern of faces in the jury box, but 8 now that we lost one of our alternates, I keep looking 9 for you in the far corner. I thank you all again for 10 being prompt this morning, and for your attention to the 11 case. 12 As you recall, we were in the middle of 13 cross-examination of one of the Plaintiff's experts 14 yesterday and that's where we'll pick up today. 15 Sir, I remind you that you remain under oath. 16 You're free to continue. 17 CONTINUED CROSS-EXAMINATION 18 BY MR. KAMINSKY: 19 Q. Good morning. Good to see you again. Did 20 you have a pleasant evening? 21 A. Not bad. 22 Q. Yesterday we were discussing how an economist 23 such as yourself can take numbers in different 24 fashions. What I mean by that is you can use certain 25 periods of time, use certain averages, you have to Plaintiff - Missun - Cross 543 1 make different calculations, true? 2 A. You make professional judgments, and you use 3 different calculations based on only that, sure. 4 Q. The opinions of one economist might be 5 different than the opinions of another economist, 6 true? 7 A. Of course. 8 Q. One economist might use different mathematical 9 formulas, or different periods of times, different 10 growth rates, all these things you've spoken about, 11 different economist have different views? 12 A. Sure. 13 Q. Now, your from Kentucky, right? 14 A. That's where I live now, yes. 15 Q. There are a lot of economist in New York, are 16 there not? 17 A. Yes. 18 Q. Now, you are with a company, what's the name 19 of your company again? 20 A. The firm I work for is Vocational Economics 21 Inc. 22 Q. You said that you're here to present, I think 23 the word was fair, conservative those types of 24 numbers, correct? 25 A. To provide fair assessment I believe 1 or 2 of Plaintiff - Missun - Cross 544 1 my assumption were conservative. 2 Q. You published materials, correct? 3 A. Sure. 4 Q. In fact, I showed you yesterday this book, 5 correct? 6 A. Yes, you did. 7 Q. Who are Gamboa and Gibson, they work for your 8 company? 9 A. Dr. Gamboa is one of the owners of the company 10 an David Gibson is an expert with the firm. 11 Q. Mr. Gamboa is your boss? 12 A. Yes, he is. 13 Q. You're mentioned in this book, are you not? 14 A. I believe I may be, yes. 15 Q. In order to get this book which is fair and 16 impartial as you said, a person has to actually submit 17 an affidavit that they are a Plaintiff's attorney, and 18 under no circumstance would they ever share the 19 information in this book with someone on the defense 20 side, because the goal of this book, and the goal of 21 your teachings, and the goal of your company is to 22 maximize the numbers you present during the case, 23 correct? 24 A. No. 25 Q. Would you agree with the following statement. Plaintiff - Missun - Cross 545 1 We, your company, understand how important it is for 2 you, the Plaintiff's attorneys, to have the very best 3 resources to maximize settlements at trial. Trial 4 guides only publishes books and videos for Plaintiff's 5 lawyers that we will never publish products aimed at 6 helping the defense. 7 Does that sound familiar for you? 8 A. That may be something that trial guides put 9 together. I'm not sure our firm put that together. 10 Q. Let me show you this. Tell me if I read it 11 correctly. 12 Can I mark this? 13 THE COURT: Yes, for identification. 14 (Whereupon, the above-mentioned document 15 was received as Defendant's Exhibit B for 16 Identification.) 17 Q. Have you ever seen that before? 18 A. I have not, but I have no reason to dispute 19 that it came from a website you're talking about. 20 Q. That's the book in question, correct? 21 A. Yes, one of the pages referring to the work 22 life tables. 23 Q. As far as this affidavit, in order for someone 24 to obtain that book, a person has to affirm to the 25 following. I'm a member of a Plaintiff's lawyers only Plaintiff - Missun - Cross 546 1 organization. I will keep the information restricted 2 from any defense lawyer. I will resist any 3 Defendant's requests for sharing this information. 4 Then it goes on and on and on. Have you ever seen 5 this affidavit? 6 A. I have not. 7 MR. KAMINSKY: Can this be marked, your Honor? 8 THE COURT: For identification, sure. Is the 9 witness alleged to be the author of the affidavit, or 10 you just want to show it to him. 11 MR. KAMINSKY: No, he is not the author. 12 (Whereupon, the above-mentioned document 13 was received as Defendant's Exhibit C for 14 Identification.) 15 Q. Have you ever seen that before? 16 A. I have not. 17 Q. Are you aware that there are such affidavits 18 regarding the purchase of the materials? 19 A. I recently heard that there was. I understand 20 there is some way you can sidestep it. I think it's 21 unfortunate that trial guides is appropriating it that 22 way. I don't believe that's appropriate, but 23 evidently that's what they are doing. 24 Q. Does that change your opinion at all as to the 25 conservative approach taken by materials you prepare, Plaintiff - Missun - Cross 547 1 and how you work with Plaintiff's attorneys in anyway? 2 A. No, the -- 3 Q. If your answer is no, it's no? 4 A. The answer is no. 5 Q. Could that possibly help explain why you've 6 been paid over a million dollars by one particular 7 Plaintiff's firm and are flown in from Kentucky as 8 opposed to an economist from New York testifying? 9 A. No. 10 Q. In your book -- 11 A. Not my book. 12 Q. In your company's book, have you read it? 13 A. I've read earlier additions of it. I'm 14 somewhat familiar with it. 15 Q. Does it talk about strategies, how to present 16 numbers in a certain way? 17 A. I don't recall if it does that or not. 18 Q. Does it talk about how you can use one study 19 versus a different study to maximize numbers? 20 A. I don't recall that being in there. 21 Q. Does it talk about how you can take different 22 periods of time to make numbers seem one way as 23 opposed to different periods of time to take numbers 24 seen -- 25 A. I don't recall any of that. Plaintiff - Missun - Cross 548 1 Q. Does it talk about how you can use different 2 growth rates for different things to maximize numbers? 3 A. That publication has nothing to do with growth 4 rates, so there would be nothing in there about that. 5 Q. Does it make reference to the consumer price 6 index? 7 A. No. 8 Q. You spoke about the consumer price index, 9 correct? 10 A. Yes, briefly. 11 Q. You mentioned how you relied on that for some 12 of your growth rate projections, correct? 13 A. Yes, the medical portion of it, yes. 14 Q. All right. Let's talk about the medical 15 portion for a second. Now, because Mr. Gambale is 16 relatively young, these projections go out to a long 17 period of time, correct? 18 A. Yes, obviously younger. Someone is the 19 younger, their life expectancy tends to be. 20 Q. Now, first of all, if we -- this is based on a 21 life expectancy of 44.8 years, correct? 22 A. Yes. 23 Q. And just like we spoke about for the loss of 24 earnings, you know, it's the last years that are the 25 absolute highest because of the compounding of the Plaintiff - Missun - Cross 549 1 growth rate, correct? 2 A. Yes. 3 Q. So, the same would be true of the last column 4 here, the future value, the overwhelming majority 5 percentage wise would be in the last year, last years 6 of the Plaintiff's life, correct? 7 A. I don't know by overwhelming majority, but 8 clearly the furthest out of those are the largest 9 numbers. 10 Q. That's because what you would call the growth 11 rate, if you compound the growth rate year after year, 12 after year, it's the last years obviously where it's 13 the highest, correct? 14 A. Correct. 15 Q. We pointed out that we were talking about loss 16 of earnings. We pointed out that the slightest 17 adjustment changing the number of average hours from 18 1,360 to 1,150, we pointed out how that has a net 19 effect of over $400,000, correct? 20 A. Yes, in terms of that shortening that we 21 didn't talk about the replacement job, then going into 22 a shortage so there would be some offset to that. 23 Q. Absolutely what's fair is fair. But we also 24 there was testimony that the study Segal the average 25 construction worker works 1,500 hours a year? Plaintiff - Missun - Cross 550 1 A. 1550, 2 Q. But Mr. Gambale's trend was down? 3 A. No. There is no trend. There is too short of 4 a time to call that a trend. 5 Q. Okay. Your calculations are what you 6 considered to be too short a period of time? 7 A. No. That's not what I said. 8 Q. Fine. Would you agree with me that his 9 projection for 2009 was less than 2008, yes -- 10 A. The rate he was working in 2009 was less than 11 his rate in 2008. 12 Q. Could that be because there was -- now, he 13 said, did you have a chance to read his testimony? 14 A. No. 15 Q. He testified that he took any job he could. 16 He would work overtime. He wanted to do this until 17 age 62. Even though it is a short period of time, if 18 he took ever job he could, and he worked overtime, he 19 still wasn't even close to reaching 1,500 hours; 20 correct, yes or no? 21 A. I would say no in that -- 22 Q. Thank you. Now, the next question is if he 23 also took every job he could, and worked overtime, and 24 loved what he did, and was going to work to age 62, 25 not only was he not anywhere close to what the average Plaintiff - Missun - Cross 551 1 construction worker would have worked according to 2 this study, he was slowing down already from the year 3 before, yes or no? 4 A. That's not true. 5 Q. Okay. Was his projection, I'll ask it simple. 6 Was his projection on a prorated basis for 2009 for 7 more hours, or less hours than 2008? 8 A. Less. 9 Q. If someone took ever job they could, worked 10 whatever overtime they could, and still wasn't going 11 to meet the average, according to that study, or even 12 keep pace with what he did the year before, is that of 13 any significance to you as a labor economist, yes or 14 no? 15 A. Absolutely not. 16 Q. Okay. Now, let's talk about how you came up 17 with this -- before we get into it I'm jumping around 18 too much. 19 Let's go back to some of the other aspects on 20 the plan. Okay. We know that if you use a different 21 annual hourly number it can go up or down, right, 22 obviously? 23 A. Yes. 24 Q. We know that if you use a different retirement 25 rate it can go up or down, correct? Plaintiff - Missun - Cross 552 1 A. Correct. 2 Q. There are other factors that can make all of 3 these numbers go up or down, correct? 4 A. Growth rate. 5 Q. Growth rate being a significant one, correct? 6 A. Yes. 7 Q. You went back, I think you said you went back 8 20 years? 9 A. Correct, I believe looking at a longer term 10 average to project the next 29 years makes sense 11 rather than focusing on some hand picked short time 12 period. 13 Q. Can you also say going back 20 years you hand 14 picked the boom years in the economy when construction 15 was at an all time high, yes or no? 16 A. No. 17 Q. Let's go back again just by changing the 18 period of time. We go back, let's look at the last 19 five years, okay. Would you agree with me that in 20 the last five years under the collective bargaining 21 agreements, 2009 the wage rate was $39 in 2010 was 22 $39.75, in '11, '12 and '13, the wage rates didn't go 23 up at all, correct? 24 A. Are those for the first half of the year or 25 second. Plaintiff - Missun - Cross 553 1 Q. For the entire year? 2 A. Because they change in the middle of the year 3 I'm not sure what you put on there. 4 Q. This is for the full year. Would you agree 5 with me that instead of going back 20 years, we just 6 looked at the more recent five years that you would 7 have to use a different growth rate than you did in 8 these numbers, yes or no? 9 A. Yes, if I believe that was appropriate, yes. 10 Q. And would I be going out on a limb to say you 11 don't thing this is appropriate? 12 A. I think you understand what my opinion is. I 13 do not believe that's appropriate. 14 Q. But again, humor me, if we did go back and use 15 the last five years instead of the last 20 years, 16 these numbers would have to come down proportionately? 17 A. Yes the annuity fund would go down to almost 18 zero because it's going down on that chart. 19 Q. The annuity fund would have to go down, 20 correct, and here you have yesterday we spoke about 21 wages, and we pointed out how this number would have 22 to be decreased if we used a different criteria than 23 the one we used, which I know you don't agree with. 24 We spoke these, numbers would have to be adjusted 25 downwards? Plaintiff - Missun - Cross 554 1 A. The ones you've asked me about, yes. 2 Q. Similarly, if we used different growth rates, 3 the rest of the numbers would also have to be 4 recalculated, correct? 5 A. Sure, you change the growth rate the number 6 changes, of course. 7 Q. What's the growth rate here between $39 and 8 $39.75. 9 A. .75s out of $39. I don't know exactly. You 10 want me to calculate that? 11 Q. We already did. What is it Carolyn? It's 2 12 percent? 13 A. That sounds about right. 14 Q. The difference between, again -- 15 A. Can I borrow your calculator. 16 THE COURT: Yes. 17 Q. The growth rate you used, what was the growth 18 rate you used for these numbers? 19 A. They're all stated on the bottom different 20 growth rate for different items wages 5 1/2 percent 21 you're asking about wages. I'm sorry 2 1/2 percent. 22 Q. You used 2 1/2 percent, but for this year it 23 was about 2 percent, correct? 24 A. Correct. 25 Q. So, it's a small difference, but it's a Plaintiff - Missun - Cross 555 1 difference, correct? 2 A. Correct. 3 Q. And here the difference between $39.75 and $40 4 is less than half a percent, approximately? 5 A. It's definitely less than 1 percent. It's 6 more than a half, I believe. 7 Q. Somewhere between 1/2 percent, and 1 percent? 8 A. Yes. 9 Q. Regardless, you used 2 1/2 percent for that 10 period of time? 11 A. Not for that period of time. 12 Q. For the entire period of time? 13 A. No, starting in the future, not during that 14 period of time. 15 Q. Going into the future. Okay. Three years in 16 a row there was no growth rate, correct? 17 A. Correct. 18 Q. Yet you in your numbers applied a 2 1/2 19 percent growth rate? 20 A. Starting in 2015, yes. 21 Q. Now, if there is no growth rate for a period 22 of time, what effect would that have on your wage 23 numbers? 24 A. It would depend on how long that occurred, and 25 if their time periods where the growth rate is above Plaintiff - Missun - Cross 556 1 the average, then it averages out to something else. 2 Q. That doesn't really answer my question? 3 A. I thought it did, sorry. 4 THE COURT: The answer is, it does. I'm 5 going to remind the witness you don't get to make 6 objections, but it is responsive to the question. 7 Q. I'll try to ask it a different way. 8 If you would use the five-year growth rate, 9 just yes or no, would these numbers have to be reduced 10 downward? 11 A. Some of them would be downward, some would be 12 up. The pension would increase. 13 Q. Okay. Let's talk about the vacation fund. 14 Has that -- what growth rate did you give to that in 15 your calculations? 16 A. The 20-year average is stating down there. If 17 you look at the whole 20-year average history 18 including those time periods of reduction it's 6.1 19 percent. 20 Q. So, this number, if you take the flat rate, 21 and project it into the future to the anticipated 22 retirement age that you give of 62, and apply a 6 23 percent growth rate is that what you said? 24 A. 6.1. 25 Q. If you apply a 6.1 percent growth rate you Plaintiff - Missun - Cross 557 1 come up with close to a million dollars, correct? 2 A. Yes. 3 Q. What would the number, if you would only apply 4 say a 2 percent growth rate? 5 A. There is no way for me to know that if you can 6 bring in an economist to do that calculation, but I 7 can't do that. 8 Q. Well, would you agree it would be 9 significantly less? 10 A. It would be less. How much I can't say 11 without doing the calculation. 12 Q. Would it be less by more than half? 13 A. I can't tell without doing the calculation. 14 Q. Well, 2 percent versus 6 percent, 6.1 percent 15 is a third, correct? 16 A. Yes, but compounding doesn't work in that way 17 you have to do the actual calculation. 18 Q. Yes you would have to do the actual 19 calculations, but roughly given your knowledge, given 20 your background, if you used the 2 percent instead of 21 a 6 percent, that number would have to come down 22 probably by about 60 to 65 percent, true? 23 A. I have no way of doing that without doing the 24 calculation. I don't have a built in calculator in my 25 head. Plaintiff - Missun - Cross 558 1 Q. Can you do it with a calculator? 2 A. No. 3 THE COURT: With my $5.00 calculator. 4 THE WITNESS: No. 5 Q. Now, for the -- I guess, sir, if an economist 6 came in, let's just stick with this for a minute, then 7 I'm going to move on. 8 If we -- if another economist were to come in 9 and use a different growth rate, say 2 percent, again 10 just picking this one number, this number would be 11 reduced using a 2 percent growth rate, because in the 12 last couple of years there's been a 0 growth rate, but 13 let's say a 2 percent growth rate instead of a 6.1 14 percent growth rate. When you say 6.1 percent growth 15 rate, you're basically saying a person gets a 6 16 percent raise every year, correct? 17 A. On average for that item that's the 20-year 18 average. 19 Q. In the last five years has the average New 20 York worker in New York City gotten a 6 percent raise 21 year after year after year, yes or no? 22 MR. McCRORIE: Objection. 23 THE COURT: Sustained. 24 Q. Would you agree with me that if another 25 economist, perhaps an economist from New York were to Plaintiff - Missun - Cross 559 1 come in and do a projection just like you did, and 2 used a 2 percent growth rate instead of a 6 percent 3 growth rate, this number even the page number would 4 come down, correct? 5 A. 2 percent is less than 2 1/2 percent, it would 6 come down. 7 Q. So, we already showed that using a different 8 hour, average hour would bring it down $400,000. 9 Using a early retirement age would bring it down 10 another couple of hundred thousand dollars, but most 11 importantly, if you used a different growth rate of 12 approximately 2 percent, instead of over 6 percent, 13 when all is said and done this $2.2 million number 14 would be below, well below $1 million? 15 A. No first of all you misstated something. The 16 growth rate on the wages is only 2 1/2 percent, not 6 17 percent. 18 Q. I stand corrected for the wages. You use 2 19 1/2 percent, so will ask a half percent difference 20 year after year after year? 21 A. Yes. 22 Q. Which might not seem like a lot, but it would 23 bring this number down, correct? 24 A. If you used 2 percent, obviously it's less 25 than 2 1/2, yes. Plaintiff - Missun - Cross 560 1 Q. For the other numbers where we get to the big 2 numbers here, that's where you use a 6 percent, 3 6.1 percent growth rate, correct? 4 A. For which item. 5 Q. Which items did you use which growth rates on? 6 A. They're all listed on the chart there. 7 Q. Help me here. Wages 2 1/2, annuity 4.1, 8 vacation 6.1, insurance 4.4, pension 7.1. So, the 9 reason, one of the reasons I would imagine this 10 pension number is so high is because you used a growth 11 rate of over 7 percent, correct? 12 A. Yes, and -- 13 Q. I didn't ask for an explanation, the answer is 14 yes, correct? 15 A. Yes. 16 Q. If you used a similar -- if you would have 17 instead of choosing the time period to average for 18 whatever reason you did, you had to pick a specific 19 time period to come up with your numbers, right, and 20 the period you used went back 20 years, correct? 21 A. Correct. 22 Q. If you would have chosen a different time 23 period, and used a lower growth rate, this number 24 would have been significantly lower, true? 25 A. If I used the same five-year time period you Plaintiff - Missun - Cross 561 1 asked me about at 7.6 percent over that time period 2 the number actually goes up. 3 Q. The insurance you used 4.4 -- the annuity 4 contribution in the last five years, has the annuity 5 contribution gone up or gone down? 6 A. Depends if you're asking about the two 7 projects with the pay cut, or for the other projects. 8 Those numbers I believe is for the two projects 9 specifically with the pay cut. 10 Q. These are the numbers that are in the 11 Plaintiff's-- these numbers come from the documents 12 that Plaintiff placed in evidence? 13 A. Correct. 14 Q. If you used these years the annuity fund which 15 you have over here, almost a million dollars, if you 16 used a different growth rate, you have to modify that, 17 correct? 18 A. If you went strictly based on that, you would 19 use a negative growth rate. If you project it out far 20 enough you get close to zero. 21 Q. If you can pick different periods of times, 22 you can pick ones that you think best reflective, but 23 as I pointed out you have the options of choosing what 24 numbers you want to average together you went back a 25 certain period of time. If you used more recent Plaintiff - Missun - Cross 562 1 history, okay, the number would have to be brought 2 down, correct? 3 A. Everything except the pension, everything else 4 would go down. 5 Q. Everything on here except the pension would 6 come down, correct? 7 A. The pension would grow, yes. 8 Q. Okay. Regarding the pension, you're analysis 9 provides almost $6 million, correct? 10 A. Yes. 11 Q. And you use that -- you came to that 12 conclusion using a 7.1 percent growth rate, correct? 13 A. 20-year average, yes. 14 Q. Again, you take the number of credits Mr. 15 Gambale would earn, which you've concluded would be a 16 141 credits, and multiply it by the pension rate, 17 correct? 18 A. Yes. 19 Q. That pension rate is valid if he works to age 20 62, correct? 21 A. The pension rate depends on the year you 22 retire when you last earn a credit. That's the rate 23 that applies to all your credits. 24 Q. So, the pension rate if he works to age 62, 25 you said you take the number of credits and multiply Plaintiff - Missun - Cross 563 1 it by the pension rate, okay. So, the pension rate at 2 age 62 would be $223 an hour? 3 A. What figure did you say? 4 Q. $223? 5 A. Yes, that's correct. 6 Q. But if he were to retire at age 55, when his 7 pension vests, and he would be entitled to it, that 8 number drops down to $147.80 an hour, correct? 9 A. Actually I think it drops one year more than 10 that. He would retire in year 2036, but because he is 11 born relatively early in that year we get the accrual 12 rate for the year before. 13 Q. It would drop down to what? 14 A. $138. 15 Q. That's $90 an hour difference? 16 A. Not per hour, per credit. 17 Q. Per credit I said it wrong, per credit? 18 A. Yes. 19 Q. You have to take the credits an multiply it 20 and come up with this number? 21 A. Yes. 22 Q. If we change one variable retiring at age 55 23 instead of retiring at age 62, this number comes down 24 by about 36 percent, correct? 25 A. How did you get 36 percent? Plaintiff - Missun - Cross 564 1 Q. Because we did the math? 2 A. You did the math, are you comparing $138, or 3 whatever with $223. 4 Q. Yes. 5 A. Did you factor in he gets payments for an 6 extra seven years, I think you forgot that part. 7 Q. I didn't forget that part if he retires at age 8 55 I'm talking about the amount of the credit -- I'm 9 sorry, the number of credits multiplied by the rate, 10 okay? 11 A. You're not asking for lifetime total, just the 12 annual amount. 13 Q. Correct. Again another factor is you know how 14 long he lives, correct? 15 THE COURT: Can we take a quick side-bar. 16 (Whereupon, a discussion was held at the 17 bench off the record outside the presence of 18 the jury.) 19 Q. The bottom line is there is a lot of different 20 variables that no one can be actually certain of 21 including no one knows exactly how many hours a year 22 he would work. No one knows a crystal ball, what's 23 going to happen in the future. No one knows when he 24 is going to retire, and how long he's going to live, 25 true? Plaintiff - Missun - Cross 565 1 A. That's true. 2 Q. All right I do have to spend some time going 3 over your medical projections, okay. I don't know how 4 you went to school for all this stuff. 5 Okay. Again, for the medical plan, you have 6 no opinion as to whether or not he, Mr. Gambale, needs 7 any of these items, that's not your job? 8 A. Absolutely correct. 9 Q. You're not testifying that he will actually 10 need these things? 11 A. Correct. 12 Q. You're just saying that if he does, in your 13 opinion, this is what each one will cost? 14 A. Based on the timing provided to me in the life 15 care plan, and the cost, the initial cost provided to 16 me, yes. 17 Q. So, you took Dr. Root testimony -- -have you 18 read Dr. Root's testimony? 19 A. Not his testimony. 20 Q. You looked at his reports? 21 A. Yes. 22 Q. His reports say what he says Mr. Gambale will 23 need, how often he will need it, what they cost on an 24 annual basis, correct? 25 A. Yes. Plaintiff - Missun - Cross 566 1 Q. What you did is you took those numbers at face 2 value, you didn't do any independent research on your 3 own as to what things actually do cost, correct? 4 A. Correct. 5 Q. For instance, you didn't, when you did the 6 future value of the cost of drugs for instance, you 7 didn't go out and see what a generic drug costs versus 8 a name brand drug, correct? 9 A. Correct. 10 Q. So, your projections are based on the numbers 11 given to you by Dr. Root? 12 A. Yes, I'm quantifying his opinion. 13 Q. And you took his opinion and your job is to 14 bring that out to future value just like you did for 15 the wages and everything else, correct? 16 A. Yes. 17 Q. In order to do that, you have to use certain 18 growth rates, correct? 19 A. Yes. 20 Q. Each one of these things every over there is a 21 different growth rate, is there not for virtually 22 every single item on the life care plan? 23 A. No, I mean there are several growth rates, but 24 it's not a different one for every single item, no. 25 Q. Well, did you rely on the consumer price index Plaintiff - Missun - Cross 567 1 to come up with your growth rates? 2 A. Yes. 3 Q. And the consumer price index has different 4 charts, different categories of things and different 5 growth rates, correct? 6 A. They have indices for different -- - that you 7 can calculate a growth rate from. 8 Q. So, the consumer price rate index categorizes 9 the growth rate of different aspects of I'll call it 10 medical treatment. They use terms such as medical 11 commodities, medical services, things like that, 12 correct? 13 A. Yes, there is an index. By comparing the 14 index number for one time period and another you can 15 compute what the average rate of index is for the 16 growth rate. 17 Q. You relied on that -- 18 MR. KAMINSKY: I would like to put the consumer 19 price index as of December 2013 into evidence. 20 MR. McCRORIE: If we knew that I would have 21 looked through it and have him see if it's the full 22 index. 23 THE COURT: I don't know where the copy is 24 coming from, assuming its an entire copy. 25 MR. McCRORIE: That would require crosschecking Plaintiff - Missun - Cross 568 1 it. If it hasn't been exchanged, we premarked 2 everything. We didn't mark this. We don't have time to 3 now determine -- 4 THE COURT: That's probably true with you, 5 but I'm happy to have you exchange a copy now. We're 6 not going to go through and verify a copy. 7 MR. KAMINSKY: I'll tell what, we don't have to 8 move it into evidence right now, I'll just ask questions 9 about it. 10 THE COURT: That you can definitely do. 11 Q. So you use short term growth rates and long 12 term growth rates, correct? 13 A. Yes. 14 Q. Is it your testimony that the growth rates you 15 used are consistent with the growth rates that are in 16 the December 13, 2013, consumer price index? 17 A. No, because the chart is based on -- 18 Q. Your answer is no. 19 A. No, I didn't use that specific year for the 20 calculation. 21 Q. If you had used the actual numbers in the 22 consumer price index -- 23 THE COURT: December 13th? 24 MR. KAMINSKY: Yes. 25 Q. If you would have used the numbers in the Plaintiff - Missun - Cross 569 1 consumer price index, isn't it true that the growth 2 rates in all these categories would be significantly 3 less than the growth rates you used to factor these 4 numbers into the future, yes, no, or you don't know? 5 A. I need a clarification on the question. 6 December index you're talking about the one month of 7 the consumer price index just December of 2013, is 8 that the question. 9 Q. It's the last number for the year, okay. The 10 year number? 11 A. Because it's reported on a monthly basis so 12 I'm trying to understand the question. 13 Q. Right. You get a consumer price index number 14 every month. I'm talking about for the year of 2013? 15 A. Comparing 12 and 13. 16 Q. If you would have used the numbers from 2013, 17 again, just like you did for the wages, you had to 18 decide what numbers to average together, correct? 19 A. Yes. 20 Q. You went back in a period of time, correct? 21 A. Yes. 22 Q. If you would have used the more recent numbers 23 not gone back in the period of time, isn't it true 24 that all these numbers would have had to have been 25 reduced significantly yes or no? Plaintiff - Missun - Cross 570 1 A. If I'm using only solely -- 2 Q. Yes or no. 3 A. I'm not understanding your question. 4 Q. Let me try to ask it again. 5 In using your projections into the future, by 6 choosing the period of time you chose instead of the 7 most recent year, you were able to use significantly 8 higher growth rates in making your projections, true 9 or false? 10 A. Compared to using just that one year is that 11 the question? 12 Q. Yes. 13 A. I haven't seen that one particular year. I 14 would suspect there are less, but I have not examined 15 that data. 16 Q. Again, we showed how just a small change can 17 have a big impact on these numbers, because of Mr. 18 Gambale's age, and how far you're projecting things 19 out into the future, correct? 20 A. The longer the projection, the more the impact 21 the growth rate will have, yes. 22 Q. So, for instance, if I'm taking pain 23 management, by using a certain growth rate you can 24 take a cost of $2,100 per year, and you can project 25 that into the future, and it comes out to $338,000 and Plaintiff - Missun - Cross 571 1 change, because of the compounding of the rate that 2 you used, correct? 3 A. That's how growth rates work. They're 4 compound, yes. 5 Q. My point is, if you used a lower growth rate, 6 this number would be depending on the growth rate you 7 chose, a little bit less, a lot less, or even up to 8 2/3 less, true? 9 A. Depends on the growth rate, but it would 10 obviously be less if you used a lower growth rate. 11 Q. Would you use, would you agree with me, if you 12 used the growth rate for -- again the consumer price 13 index categories different things, they call them 14 medical commodities? 15 A. Yes. 16 Q. Medical services, correct? 17 A. Yes. 18 Q. There is a different growth rate for medical 19 commodities, and medical service, correct? 20 A. They have historically been, yes. 21 Q. So, the first thing you have to do is you have 22 to go through the chart and find out what category to 23 put those things in, correct? 24 A. Yes. 25 Q. If you put something in the medical services Plaintiff - Missun - Cross 572 1 category, for instance, that the consumer price index 2 calls a medical commodity, you would have used a 3 higher growth rate because of the categorization, 4 true? 5 A. Yes, historically medical services have grown 6 quicker than commodities. 7 Q. By physical therapy is in the services 8 category, you would apply a higher growth rate, 9 correct? 10 A. Services compared to commodities, yes. 11 Q. Okay. This is the code for what you used 12 here, correct? 13 A. Yes. That tells you the growth rate type. 14 Q. So, in other words for pain management you 15 used -- 16 A. Professional services. 17 Q. You used a long term growth rate of 18 4.9 percent? 19 A. For pain management, yes. 20 Q. The same would be true for the radiologist, 21 the anesthesiologist, all these things that say 22 professional services, right? 23 A. If they are life long needs. If they are 24 needed within the ten-year time period, then it's the 25 short term rate of 3 percent. Plaintiff - Missun - Cross 573 1 Q. So, if something is needed for life, you used 2 a growth rate of 5.9 percent? 3 A. If it's a medical service you're asking me 4 about professional service. 5 Q. For professional services you used 6 4.9 percent? 7 A. Correct. 8 Q. Again, if you were to use 2 percent instead of 9 4.9 percent, these numbers arguably would come down in 10 half? 11 A. They would come down significantly. 12 Q. For instance, the spinal cord stimulator 13 implant I believe it's the largest component on here, 14 you gave that a future value of 2.1 million and 15 change. You categorized that as a medical commodity 16 and used the long term growth rates of 5.9 percent? 17 A. No, the spinal cord stimulator implant is a 18 medical service. If anything it can be qualified as a 19 hospital service, which has a higher growth rate. 20 Q. Right, the growth rates you used is the reason 21 why this comes out to such a high number, because it's 22 a high growth rate, correct? 23 A. Historically that type of items has a high 24 growth rate, yes. 25 Q. When you say historically, that's because Plaintiff - Missun - Cross 574 1 you're choosing the time periods that you used in your 2 analysis, correct? 3 A. Of course. 4 Q. But if you used a different time period, a 5 more current time period, this number could be reduced 6 by -- these numbers could be reduced by as much as 50 7 percent, correct? 8 A. I can't say how much the short term rates are 9 listed there for the last ten years they're generally 10 less than the long term rates. 11 Q. So, even if you go back just ten years instead 12 of 20 years, you just told the jury that the numbers 13 are lower, correct? 14 A. The long term average is based on more than 15 20 years, but the short term rate is smaller number 16 that's correct. 17 Q. The more recent in time you get because of the 18 economy or whatever it may be, these numbers are even 19 lower, correct? 20 A. Yes, they've been relatively lower in recent 21 time period. 22 Q. That would be consistent with why the union 23 workers had to give concessions in their wages, 24 correct? 25 A. Can you repeat the question again. Plaintiff - Missun - Cross 575 1 Q. I'll withdraw it. 2 If we went through the consumer price index 3 for medical care, and medical care commodities, you 4 assumed that the growth rate was going to be 2.7 5 percent, correct? 6 A. Short term rate, yes. If it's long term 3.5. 7 Q. According to the consumer price index, medical 8 care commodities for the last five years the number is 9 1.7 percent, correct? 10 A. I don't know. 11 Q. But you used an additional percentage point in 12 your calculations, true? 13 A. Mine is larger than the number you use 14 mentioned. 15 Q. As we have gone over several times, even the 16 slightest higher growth rate can have a dramatic 17 effect on this number, because of the length of time? 18 A. The longer the time period, the more the 19 growth rate matters. 20 Q. Now, so we talked about medical care 21 commodities, let's talk about the medications. You 22 categorize that as a medical commodity, correct? 23 A. Yes it falls under that category, yes. 24 Q. You used a short term 2.7 percent growth rate 25 and long term 3.5 percent growth rate? Plaintiff - Missun - Cross 576 1 A. The short term doesn't apply. The medications 2 are all life long needs. 3 Q. For medical commodities you used 2.7 short 4 term and 3.5 long term, correct? 5 A. I used 3.5. 6 Q. For that category those were the short term 7 and long term rates, but for this specific item within 8 the category since it is a lifetime cost, you used the 9 long term? 10 A. That's correct. 11 Q. So, for these medications which add up to 12 about a million dollars you used a long term growth 13 rate of 3.5 percent? 14 A. That's correct. 15 Q. Again as an economist, can you, I know you're 16 not a medical expert, if you can't answer this 17 question, just tell me, you gave prices for Percocet 18 and Xanax, then we'll get into the Lidoderm patch? 19 A. I didn't give prices, I was provided the 20 prices. 21 Q. You were provided the prices, you gave 22 projections? 23 A. Yes. 24 Q. You did not first of all consider the 25 alternate cost of a generic drug, true? Plaintiff - Missun - Cross 577 1 A. No. 2 Q. In your experience as and economist, can you 3 tell us a generic drug even though it's the same thing 4 when something comes off patent, a generic drug is 5 significantly less than a name brand drug, is that 6 fair it to say? 7 MR. McCRORIE: Objection. 8 THE COURT: Sustained. If you want an 9 explanation, I'll talk to you on side-bar. 10 MR. KAMINSKY: Can I ask it a different way? 11 THE COURT: It's not for me to pre rule on 12 questions you ask before you ask them. 13 Q. Is all things being equal is a generic drug 14 less expensive than a name brand drug? 15 A. I'm not an expert in that area, but as a lay 16 person like jurors are probably aware that generic 17 drugs, if available tend to be less expensive than 18 name brand. I have no input in the care plan that 19 would be a question for Dr. Root. I didn't chose the 20 drugs, he did. 21 Q. Similarly, the Lidoderm patches, Lidoderm 22 patches, now let's talk about almost $800,000 worth of 23 Lidoderm patches, correct? 24 A. Based on Dr. Root's opinion, yes. 25 Q. Do you know if Dr. Root was pricing those Plaintiff - Missun - Cross 578 1 Lidoderm patches on an individual basis, or if he was 2 buying them at a bulk discount? 3 A. No, that would be a question you could ask 4 him. 5 Q. I probably should ask him. I just thought of 6 it now. 7 Again, the growth rate that you used for that 8 was 3.5 percent, correct? 9 A. Yes. 10 Q. If consumer price index says that the actual 11 growth rate is 0 point -- wait a second. Is 12 0.79 percent -- 13 A. Over the last year. 14 Q. 2013, okay? 15 A. For one year, yes. 16 Q. The difference in this number would be about 17 would go from almost $100,000 to what, maybe a 18 $150,000. 19 A. I have -- one thing can be, would be if there 20 is 0 percent growth rate, you can take 44.8 times 7. 21 Q. Just multiply it? 22 A. So, you know it's at least that, then it's 23 more based on some growth. 24 Q. Sometimes the price of things go down, true? 25 A. Prices rarely go down, but on occasions Plaintiff - Missun - Cross 579 1 certain prices do go down. 2 Q. And the, what else that's significant, 3 professional services short term growth rate of 3 4 percent, long term growth rate of 4.9 percent. Those 5 would be we spoke about some of those. The consumer 6 price index has a separate category for physicians 7 services, correct? 8 A. Yes. 9 Q. And the growth rate for physician services as 10 opposed to medical services, you use the 5.9 percent 11 long term growth rate, correct? 12 A. For what. 13 Q. For medical service, for medical services? 14 A. If it was an item that I denote as medical 15 services, yes, that's long term, yes. 16 Q. I asked you the first thing you have to do is 17 put things in a category, correct? 18 A. Yes. 19 Q. Now, isn't it true that there's a compartment 20 in the consumer price index called professional 21 services? 22 A. Yes, I'm using it. It's on the board there 23 see it says professional services. 24 Q. Okay. Correct. Then, if you use, you didn't 25 use something called physicians services, correct? Plaintiff - Missun - Cross 580 1 A. Correct there is I believe that falls under 2 the umbrella of professional services and the growth 3 rate is almost identical. 4 Q. Well, let's take a look at that. Under the 5 CPI they breakdown some of the general categories into 6 more specific categories, do they not? 7 A. Yes. 8 Q. For physicians services, the growth rate for 9 physicians services is 1.6 percent, true? 10 A. Assume you're asking me over the last year, 11 that figure is for the very last year. 12 Q. If we used 1.6 percent instead of 4.2 or 13 5.9 percent, the items that you categorize under 14 physician services would have to be reduced probably 15 by close to 60 percent for the future value, true? 16 A. The question is incorrect, because you're 17 pointing to medical services, then identifying 18 something I used professional services on, so I don't 19 know if you want to ask that again. 20 Q. Hold on. I told you this is confusing, so 21 bear with me. The difference between the growth rate 22 for professional services that you use short term, 3 23 percent long term, 4.9 percent, the difference in 24 growth rate for professional services is significantly 25 higher than the growth rate for physicians services, Plaintiff - Missun - Cross 581 1 true? 2 A. Not in general, no. 3 Q. According to the most recent addition of the 4 consumer price index it is, true? 5 A. No, I would need to see what the difference is 6 for that item for that specific year. You're 7 comparing ten, and long term averages with a one year 8 average you're comparing apples and oranges -- 9 Q. Right now I'm asking you how you categories 10 different things, you put certain items such as 11 physicians services under the larger heading of 12 professional services? 13 A. Correct. 14 Q. But the CPI breaks professional services 15 further so that there is a specific short term, and 16 long term rate for physicians services, correct? 17 A. I'm not sure. I have to see how long that 18 data goes back if you can calculate the long term for 19 that. 20 Q. Now, would you consider a radiologist a 21 physician, an orthopedist a physician, a neurologist a 22 physician; would you consider them physicians? 23 A. Yes, physicians and also rendering 24 professional services they both fall under that 25 envelope. Plaintiff - Missun - Cross 582 1 Q. You had a choice for those items to use the 2 growth rate for physicians, or to use the growth rate 3 for professional, and you chose the one just by means 4 of an example, you chose the one that had a 5 significantly higher growth rate, true? 6 A. No. 7 Q. If we used a growth rate of 1.6 percent for 8 everything you listed as physicians services, okay I'm 9 sorry, professional services, these numbers would all 10 have to be reduced accordingly, yes or no? 11 A. Yes, if I used that, sure. 12 Q. Okay. 13 THE COURT: Can we have a quick side-bar. 14 (Whereupon, a discussion was held at the 15 bench off the record outside the presence of 16 the jury.) 17 Q. Actually, Dr. Missun, just for clarification, 18 the growth rates I gave you in the consumer price 19 index are a five-year average going back five years, 20 okay. Are you aware of that? 21 A. I'm not aware of that. You're asking me to 22 assume that. 23 Q. I'm asking you if you know that, or don't? 24 A. I don't. 25 Q. Because again, when you make your projections, Plaintiff - Missun - Cross 583 1 you have to pick a range every time to make a 2 projection on? 3 A. Yes. 4 Q. Would you agree with me by going back 20 years 5 to 1994, you were able to use higher growth rates than 6 if you had just gone back five years? 7 A. The long term -- 8 Q. Yes or no. 9 A. What you said is incorrect in your question, 10 so I guess my answer is no. 11 Q. Okay. Okay. Did you use a 4.4 percent growth 12 rate for health insurance; you can look at your notes? 13 A. For the lost earnings? 14 Q. Yes. 15 A. It should be on that chart there. 16 4.4 percent. 17 Q. Now, the CPI for the last five years gives a 18 growth rate for health insurance of 0.658 percent, 19 true? 20 A. I don't know. 21 Q. Well, again, when you're projecting this 22 number into the future, okay, if you use an -- in this 23 case it's a significantly lower growth rate, this 24 number would come down dramatically, correct? 25 A. If you use a dramatically lower growth rate Plaintiff - Missun - Cross 584 1 the number comes down. 2 Q. For the last five years the consumer price 3 index has used the dramatically lower growth rate? 4 A. For? 5 Q. Insurance. 6 A. I'm not aware of an insurance thing. That's 7 notice where I get that figure from. 8 Q. Sometimes, are you saying sometimes, you rely 9 on the consumer price index, and sometimes you use 10 other studies? 11 A. There-- I mean there is other studies yes, 12 that measure -- 13 Q. In fact in your book, in your company's book, 14 you indicate that sometimes it's better to use 15 different studies than other studies, because they're 16 more favorable, true? 17 A. No, you use the study that's most applicable, 18 notice that's most favorable. 19 Q. Okay. All right. I promised we would get you 20 out of here so you can catch a flight. Thank you for 21 staying overnight. 22 THE COURT: Redirect. 23 MR. McCRORIE: Yes, your Honor. 24 MR. KAMINSKY: Before I forget I would like to 25 move these into evidence subject to counsel having Plaintiff - Missun - Redirect 585 1 objection. 2 THE COURT: We'll take it up on recess. 3 REDIRECT EXAMINATION 4 BY MR. McCRORIE: 5 Q. Dr. Missun, do any of Mr. Kaminsky's questions 6 to you change your opinions that you gave the jury on 7 direct examination? 8 A. Not at all. 9 Q. Were his questions and basis based on sound 10 economic principles? 11 MR. KAMINSKY: Objection. 12 THE COURT: Overruled. 13 A. I don't believe so. 14 Q. Just I have to take sometime to go over some 15 of the things. I want to take you back to the very 16 first set of questions Mr. Kaminsky was asking you, I 17 believe the questions had to do with you using a 2 1/2 18 year time period, and that being too short, do you 19 remember that started out by saying that's too short? 20 A. Less than two years. 21 Q. Okay. That's because that's what you had the 22 information available. Your a being handed up which 23 is in evidence is the work, the actual work record of 24 Michael Gambale, is that right? 25 A. Yes, I had his actual work record. Plaintiff - Missun - Redirect 586 1 Q. Then right after Mr. Kaminsky saying that 2 that's too short of a time period, he asked you to 3 take one of the shortest time periods. He asked you 4 to do the 656 hours that Mr. Gambale had work in 2009, 5 and he asked to you do just what he said you shouldn't 6 do, to extrapolate one short number out for the year, 7 do you remember that? 8 A. Yes. 9 Q. That came out to 1,100 plus hours, right? 10 A. Correct. 11 Q. Let's do what Mr. Kaminsky did, not for 2008, 12 let's do it for 2007. I'm going to hand you a 13 calculator. Do exactly what he did for 2007. We're 14 going to, we'll extrapolate if Mr. Gambale worked the 15 full year in 2007, given the 405 hours he worked, just 16 from October to December, what would that work out for 17 the year in number of hours worked? 18 A. Well, it was almost exactly a three-month time 19 period for that. I don't need a calculator. If you 20 take four he worked a quarter of a year, you multiply 21 by 4, 4 times 405 would be 1,620 hours. 22 Q. How much? 23 A. If you multiply that by 4, it's 1620. 24 Q. If Mr. Gambale worked 1620 hours and you used 25 that, he would have one extra pension credit, right Plaintiff - Missun - Redirect 587 1 because you're using 1393 giving the Defendants the 2 benefit of not the average iron worker, one credit 3 less, but if you used the 2007 year to extrapolate, 4 then the Defendants if you want to do that would owe 5 Mr. Gambale, assuming the jury finds his injuries 6 causally related to the fall, they would owe him a 7 little bit more than the $5,965,000 just for pension 8 credits, because there would be one more credit per 9 year for the 30 years? 10 A. It would be quite a bit more. 11 Q. Mr. Kaminsky pointed out even if you change a 12 percentage just a little bit, he says it's a drastic 13 change, correct? 14 A. That's what he said. 15 Q. 1600 hours on the wages would also add more to 16 the vacation, the benefits, the legally required, the 17 annuity, correct? 18 A. Yes, it would. 19 Q. Okay. So, even if you didn't want to use the 20 average 1550 hours the full year which you didn't use, 21 you average them the full year he worked, tell the 22 jury what that was, 2008? 23 A. 1,455.75 hours. 24 Q. Would it be fair to use 1100 hours as Mr. 25 Gambale's average -- withdrawn. Would Mr. Gambale get Plaintiff - Missun - Redirect 588 1 short changed if that wasn't the average hours he 2 worked? 3 A. No, the fair thing is really two choices. One 4 is given a short work span that's less than two years, 5 and I would note that the couple of months that are 6 not repeated where he had two years, the months that 7 he didn't have the opportunity to work were summer and 8 late fall of -- if there is any seasonality at all 9 those would be at least as good as the other months, 10 so, you know one argument would be either his work 11 record is too short to extrapolate, or it's good 12 enough. 13 So, if you take his whole work record which I 14 think if you consider his work record as the only 15 choice that's reasonable, you take the figures that I 16 used there, the 1393. The other alternative if you 17 think it's too short to extrapolate from, and he 18 didn't have the opportunity to really establish who he 19 could do the fairest estimates, is to look at the 20 union average. 21 Q. I would like you to assume you read his 22 testimony, Mr. Bonilla testified that whether you're 23 an apprentice that's what you get, the least hours 24 once your a journeyman and build your representation 25 you get more hours? Plaintiff - Missun - Redirect 589 1 A. Correct. 2 Q. What I would like pretty much, the hours 1550. 3 What I would like you to do is I'll give you a green 4 pen and put the numbers on Plaintiff's 38. If we were 5 asking the Defendants for the average, the 1550 hours, 6 the average iron worker works, what would that number 7 for the wages, if you can do the pension, because that 8 would increase the pension by one credit, if not tell 9 us? 10 A. Yes, I can provide an estimate of that. The 11 if you went with 1550 hours, you take 1550 and divide 12 it by 1393. 13 Q. I'm going put the board next to you, 14 Plaintiff's 38. You can tell us what you're marking 15 on it with the green marker? 16 A. I find that the hours going from 1393 up to 17 1550 is an 11.27 percent increase. The wages, the 18 legally required, the annuity, the vacation, all of 19 those would go up by that, the insurance stays the 20 same, pension credits he would get an extra pension 21 credit each year from year 2010 through 2040, that's 22 an extra 33 years in credits, so the calculation I had 23 gave him a hundred 41 credits. He has an extra 33 24 credits he would have 174 credits, so simply taking 25 174 dividing it by 141, that tells me how much to Plaintiff - Missun - Redirect 590 1 multiply, increase the figure, I had up to what it 2 would be with the extra credits. So, if I do 3 that -- - 4 Q. The board is next to you to write the number 5 on the board at 1550, please? 6 A. Yes. So the pension would increase by roughly 7 23.4 percent with that, and the new pension figure 8 I'll write that over to the left over here -- 9 MR. KAMINSKY: I move to strike this. There is 10 no -- 11 THE COURT: Overruled. It's the same 12 calculations you asked him to do except that it's their 13 expert. 14 A. $7,361,541. 15 Q. If he was the average iron worker working 16 those 30 years? 17 A. Yes, I'll write 1550 hours here at the top. 18 Q. You're making a new column? 19 A. Yes. 20 Q. Any other additions if you can do the 21 calculations? 22 A. Yes, the wages again instead of 1393 hours 23 we're using 1550. So, if I take 1550 divided by 24 1393, as I stated earlier 11.27 percent increase. If 25 I take the figures I have here for wages, vacation, Plaintiff - Missun - Redirect 591 1 annuity, legally required, and I multiply it by 1.1127 2 that gives me the new figure. So, 1.1127 times 3 $2,254,189, would give me a figure for wages of 4 $2,508,236. The unreimbursed expenses would be the 5 same. I'll just carry that down. Then, the vacation 6 again I would take 1.1127 times $976,826, and that 7 would give $1,086,914 legally required would also 8 increase by the same percentage, that figure would 9 increase to $305,584. Annuity 1.187 times $831,336 10 gives $925,027. The insurance amount stays the same. 11 Q. Can you do me a favor, it's in evidence, it 12 would be hard to do the math just with the calculator 13 add it up, finalize the column? 14 A. Sure. The sub total for wages and vacation 15 $3,870,685 -- I apologize. I need to recalculate 16 that. That's not the right number. 17 Q. You can take your time, doctor. 18 A. The figure should be $3,319,615. I accidently 19 added the unreimbursed expenses instead of subtracting 20 them. The new future preinjury total comes to 21 increases from $10,991,874. That would be 22 $12,876,801. 23 Q. Doctor, is that what you meant yesterday when 24 you said you were being conservative by using the 1393 25 number rather than a 1550 that an average iron worker Plaintiff - Missun - Redirect 592 1 works? 2 A. Yes. 3 Q. One of the areas, continue -- let me ask you 4 this, just so we can -- we gave a replacement job, 5 even though, doctor could you just do this tell the 6 jury when someone works a 40-hour work week put the 7 1393 into perspective, a 40-hour work week what does 8 that compute to, to the year? 9 A. 2008 hours, 52 weeks times 40. 10 Q. In the calculation for the replacement job did 11 you give the Defendants the benefit of the doubt of a 12 40-hour work week for the replacement job, not the 13 1393. Let's clarify that? 14 A. I was asked to assume $30,000 a year, and that 15 was a full-time job. 16 Q. A 40-hour work week? 17 A. I was asked to assume $30,000. 18 Q. Okay. You can give the new total if you want 19 to take away replacement. 20 A. If you use the 1550 hours, the future lost 21 including the offset for $30,000 job with benefits for 22 the same work life would be now $10,513,584. 23 Q. I don't want to do it for each and every item 24 where Mr. Kaminsky took items and changed your 20-year 25 time period, but I'm going to give you Plaintiff's Plaintiff - Missun - Redirect 593 1 33 B, the pension accrual rate chart. I'm going to 2 hold up the chart he was holding up. I want you to 3 take the green marker, or put a box around 2009, to 4 2013 the same time period he was showing you wages 5 went up, either not at all or 2 percent, or however 6 significantly, or insignificantly he stated it? 7 A. You want me to box that. 8 Q. Yes, please, 2009 through 2013. 9 Now, you said something on direct. Those 10 years include the years of the concession, correct? 11 A. Yes. 12 Q. So, a collective -- in the collective 13 bargaining agreement it was negotiated for those years 14 on those projections we might take a little less, but 15 there were other give backs in terms of hours and 16 benefits? 17 A. Yes. 18 Q. Even one benefit, the annuity even went down a 19 little, right? 20 A. Yes. 21 Q. That time period, the same time period where 22 the wages were either went up a little bit or not at 23 all, tell the jury if you used that time period not 24 the 20-year time period when it was 7.1, you already 25 gave the answer, but tell them what the pension Plaintiff - Missun - Redirect 594 1 increased during the time periods, the wages were 2 either low increases or no increases during those 3 years? 4 A. Actually I don't know the answer to that. I 5 calculated a five-year average, because one of the 6 charts I prepared before with the five-year average 7 from 2008 to 2013 that was 7.6 percent. I have not 8 done 2009 to 2013. 9 Q. If you just went one year before whether it 10 went from 22.50 to right there, 25 that makes it 7.6 11 percent? 12 A. Yes. 13 Q. So, is that another example of you being 14 conservative by looking back 20 years? 15 A. I think it's being fair. If you look at a 16 five-year average, and over that five-year time period 17 you have to ask yourself, is that five-year time 18 period representative of what you think in the case of 19 the earnings the next 29 years would be, so if the 20 last five years was a deep recession for a chunk of 21 that time, in essence if you're going use those five 22 years to project everything, you're in essence using 23 that time of economy to project the next 20 years, 24 that's why I use a 20-year average. I include that in 25 there as a possibility, but I also want to include Plaintiff - Missun - Redirect 595 1 other types of economic activities. So, yes you 2 include those, and you take that into consideration, 3 but you don't just focus solely on the worst years 4 possible. 5 Q. If an economist like Mr. Kaminsky said would 6 want to come in here and do that and use that time 7 period for the wages, but they were also stuck with 8 that time period for the pension, would the pension 9 numbers of $7,361,514, if it's the average iron worker 10 or the 1393 at $5,965,363, would that go up if you use 11 7.1, and their economist used 7.6? 12 A. 7.6 obviously is a higher growth rate. Those 13 numbers would be larger. 14 Q. As Mr. Kaminsky pointed out even if it's just 15 a little, it can be dramatically larger? 16 A. It could be. 17 Q. Just in terms of we're not going to get too 18 deep into it too, but CPI originally the first set of 19 questions it was for one year, then it was for five 20 years, but when you want to find out the price of 21 medicine, have drugs, the cost of drugs, generic or 22 otherwise, if you went 20 years back, would they be a 23 lot cheaper if you just looked at the number? 24 A. Sure things go up overtime at different rates, 25 I didn't -- - Plaintiff - Missun - Redirect 596 1 Q. I'll give a couple of examples. Was a slice 2 of pizza or pizza pie 20 years drastically different 3 than it is now? 4 A. Yes. 5 Q. The cost of the subway? 6 A. I don't live here, but I'll assume the jury 7 would know how much the subway was back then. 8 Q. So, listen, 20 years from now would you expect 9 the cost of medicine on average is going to go up? 10 A. Yes. I expect in general medical costs to go 11 up, and I look at a long term average to project 12 something that's needed over the next 45 years. 13 Q. It's going to sound like a wise guy if they 14 can prove to get a spinal cord stimulator at a flea 15 market at a real deep discount, that number would be 16 lower, right? 17 A. Sure. 18 Q. But if as expected, the cost of spinal cord 19 stimulators, the cost of Percocet, the cost of medical 20 care, if it's going to go up 20 years from now, you 21 went 20 years back to give a number of years back to 22 figure out a percentage, which would be fair and 23 reasonable to you? 24 A. That's not correct. Mr. Kaminsky was assuming 25 I used the last 20 years to project the future, which Plaintiff - Missun - Redirect 597 1 is why I said no to one of his questions. The long 2 term average based on 60-year average. 3 Q. We're looking to go into the 44.8 years? 4 A. Yes, roughly 45. 5 Q. To find out if he still, because the spinal 6 cord stimulator is for life some of the meds and 7 therapies are for life. If he's going to need a 8 spinal -- if he is going need medication at 75 years 9 old, 70, 65, you're giving the jury the tools to 10 project out into the future? 11 A. Yes. 12 Q. Certainly you don't expect any of those 13 categories to go down. 14 Let's take this. A doctor's visit to go to a 15 doctor's office 20 years ago was it a lot cheaper than 16 it is today? 17 A. Yes. 18 Q. How about to have a cervical spine fusion at 19 four levels 20 years ago would that have been cheaper 20 than it is today? 21 A. I don't know what the cost of that is, but I 22 would assume that would have been much less expensive. 23 Q. Just you wanted to say something about this 24 affidavit you were being requested as if it was an 25 affidavit prepared by you, what is trial guides, what Plaintiff - Missun - Redirect 598 1 is that? 2 A. They're the publisher of the tables I was 3 being asked about. 4 Q. Is that so it's trial guides that when they 5 sell your book not your company -- 6 THE COURT: Not his book. 7 Q. It's not your book. When they sell that book 8 they want whoever is buying it to sign that? 9 A. Yes that's my understanding I've been told 10 that there is a way around this affidavit that you can 11 go through some other way to do it. 12 Q. Obviously. 13 A. But I definitely don't agree with that 14 approach of theirs. 15 Q. In terms of maximizing a particular whether 16 it's a Plaintiff or some litigant in court, maximizing 17 the damages would mean teaching the jury exactly what 18 they are, so they don't get minimized, correct? 19 A. I don't maximize the calculations. What I do 20 is provide what I think is reasonable on the hours. 21 Again, I think there is two approaches to look 22 at his full work record, and if you think that because 23 he is an apprentice he may have worked more hours, I 24 personally don't think 1393 is that far off from about 25 1550. It could increase somewhat as an apprentice, Plaintiff - Missun - Recross 599 1 going to a journeyman. If you don't think that's 2 enough time to establish his work pattern, then I 3 think the fairest thing to do would be to look at the 4 union average. If you do think you want to take into 5 consideration work record, then that's what I would go 6 with the 1393, leave that up to the jury. 7 Q. I know your company wrote that book. Did your 8 company write the collective bargaining agreements 9 that you used to make the projections that the 10 Defendant Pavarini and other contractors agree to the 11 rates of; did you write that collective bargaining 12 agreement? 13 A. No. I also did not use the book at all that I 14 was asked about for any of my calculations. 15 Q. I'll see you again on re-redirect. 16 No further questions. 17 THE COURT: Recross. 18 RECROSS EXAMINATION 19 BY MR. KAMINSKY: 20 Q. Very briefly. I'm not suggesting anyone buy 21 any medical equipment at a flea market, but for the 22 record, I did get this book on Amazon at a discount? 23 A. Okay good so you didn't have to sign -- 24 Q. Correct. 25 A. Very good. Plaintiff - Missun - Recross 600 1 Q. You said one thing to do is to use the average 2 that's in that study of 1500, correct? 3 A. Yes. 4 Q. The reason there is an average is because some 5 of the people are above the average, and some people 6 are below the average? 7 A. Correct. 8 Q. So take the ones that are above, take the ones 9 that are below, and average? 10 A. Correct. 11 Q. Now, if we look at the limited history of Mr. 12 Gambale in 2007, we would have prorated out to 13 1620 hours, correct? 14 A. Yes. 15 Q. In 2008 we know it was a full year it was 16 1455, correct? 17 A. Yes. 18 Q. And if we prorate out 2009, it's 1150, 19 correct? 20 MR. McCRORIE: Objection. This is the same as 21 was done on cross. 22 THE COURT: Can you read the last question. 23 (Whereupon, the requested portion of the 24 record was read back by the Court Reporter.) 25 THE COURT: He can ask it. Plaintiff - Missun - Redirect 601 1 MR. McCRORIE: I understand. 2 THE COURT: Overruled. 3 Q. So, do you see because you are an economist, 4 and you look at trends, do you see Mr. Gambale's 5 working for the limited time period that we have 1620 6 to 1455 to 1150, is that an upward trend, or is that 7 downward trend? 8 MR. McCRORIE: Objection. 9 THE COURT: Sustained. 10 Q. When you say average, I will a use another 11 analogy. If a guy is batting 230, then he goes down 12 to 220, then he goes down to 210, but the average 13 hitter bats 270, is that hitter going bat 270 the next 14 year, if you know. I'll withdraw the question. 15 Nothing further. Thank you very much. 16 THE COURT: Thank you. 17 REDIRECT EXAMINATION 18 BY MR. McCRORIE: 19 Q. Very briefly. Under these unique circumstance 20 in this case, why did you use the average his hours 21 rather than the 1550? 22 A. Actually when I initially got this referral, 23 I've only recently discovered what the union average 24 was. I didn't have that even as an option. Had I 25 actually known about that, I would have done both of Plaintiff - Missun - Redirect 602 1 those analyses on the front end, and would have left 2 it up to the jury saying you can either look at his 3 work records in its entirety, and say this is the rate 4 at which he is working, and you can either determine 5 whether or not that's too short a time to extrapolate 6 from, or if even if you can extrapolate, if you think 7 there is some adjustments for the fact he was an 8 apprentice going into a journeyman that it might have 9 gone up. You can either consider that work, or if you 10 think it's too short to extrapolate from, and look at 11 the union average, those are the two options I believe 12 are the only two reasonable options. I leave it up to 13 the jury from hearing all the other evidence to 14 determine -- 15 MR. KAMINSKY: Move to strikes. 16 THE COURT: Sustained. 17 Q. The last question was asked of you, if a 18 rookie gets hurt in his career, he loses his whole 19 contract, right. He gave you a baseball analogy, the 20 rookie gets hurt? 21 A. The rookie gets hurt, he may have developed 22 into an above average player, below average player. 23 MR. KAMINSKY: I don't want to talk about 24 rookies getting hurt for obvious reasons. 25 THE COURT: Good forbid. Plaintiff - Missun - Redirect 603 1 Q. If he loses his contract, would he loose the 2 wages into the future that he otherwise would have had 3 if he was not hurt? 4 A. Yes. 5 MR. McCRORIE: Nothing further. 6 THE COURT: Thank you. You you are excused, 7 sir. Safe travels. 8 (Witness excused.) 9 THE COURT: Let's take a very brief 2, 3 minute 10 recess, let everybody stretch their legs, do a little 11 housekeeping. 12 (Whereupon, the jury left the courtroom.) 13 (Whereupon, a brief recess was taken.) 14 THE COURT OFFICER: All rise. Jury entering. 15 (Whereupon, the jury entered the courtroom.) 16 THE COURT: Everybody can be seated. We're 17 going to call Mr. McCrorie, are you ready to call your 18 next witness? 19 MR. McCRORIE: Yes, Plaintiff calls Andrew 20 Merola, M.D.. 21 THE COURT OFFICER: Remain standing. Raise 22 your right-hand. 23 DR. A N D R E W M E R O L A, having been first duly 24 sworn, was examined and testified as follows: 25 THE COURT OFFICER: State your name and Plaintiff - Dr. Merola - Direct 604 1 business address for the record. 2 THE WITNESS: Andrew Merola, 567 First Street, 3 Brooklyn New York. 4 THE COURT: That's MD not DO. 5 THE WITNESS: Yes, correct, your Honor. 6 THE COURT: Your witness. 7 DIRECT EXAMINATION 8 BY MR. MCCRORIE 9 Q. Good afternoon Dr. Merola? 10 A. Good afternoon. 11 Q. The layout of the court, I ask even though I'm 12 standing here that you direct your answers to the 13 jury. 14 When did you become licensed to be a medical 15 doctor? 16 A. 1992. 17 Q. Can you tell the jury as succinctly as you 18 can, they already know what internship, residency and 19 fellowship, if you can just tell them succinctly as 20 you can, your educational background, leading up to 21 your current practice? 22 A. After I graduated medical school, I came to 23 State University of New York Health Science Center of 24 Brooklyn, where I did my internship, general surgery. 25 Then I did a residency in orthopedic surgery. I Plaintiff - Dr. Merola - Direct 605 1 finished that in 1995, then I went to the University 2 of Colorado in Denver, Colorado where I did a spine 3 surgery fellowship for a year. Then came back to New 4 York City in 1996 where I started the practice of 5 orthopedic spinal surgery. 6 Q. Doctor, do you currently have hospital 7 privileges? 8 A. Yes, I do. 9 Q. Tell the jury where? 10 A. I have privileges, that means the ability to 11 admit patients and treat them at SUNY Downstate 12 Medical Center here in Brooklyn, New York Hospital and 13 Mount Sinai Hospital. 14 Q. If you can -- are you board certified? 15 A. Yes. 16 Q. From what field? 17 A. Orthopedics surgery. 18 Q. Can you tell the jury what the difference 19 between orthopedic surgery and orthopedic spine 20 surgery are? 21 A. Orthopedic surgery is basically refers to the 22 bones and joints and tendons and ligaments of your 23 body. Everything that you need to be up and able to 24 walk around then orthopedic reconstructive spinal 25 surgery specifically refers to that branch of Plaintiff - Dr. Merola - Direct 606 1 orthopedic surgery that deals more in depth with the 2 neck and the back. 3 Q. Can you give the jury an idea of approximately 4 the number of spine surgeries you perform each year? 5 A. I generally operate several days a week. I 6 probably do in the neighbor of about five surgeries or 7 so per week. I've been operating since 1996 when I 8 got back so 2014, 1996 -- 9 Q. Not the total since you've been practicing? 10 A. About 4 or 5 surgeries per year. 11 Q. Per year, or per week? 12 A. I'm sorry, per week. I work about 40 some odd 13 weeks a year. 14 Q. We have an economist we can't call him back to 15 do the math. Have you ever testified in court before? 16 A. Yes. 17 Q. Does your -- do you have a private practice? 18 A. Yes. 19 Q. What is the name of the private practice? 20 A. It's me, my name. 21 Q. Were you formerly employed for the record, 22 your file has been marked in as evidence, your office 23 notes as Plaintiff's 45, so you can refer to it. Back 24 in 2009 were you a member of an orthopedic practice? 25 A. I was a spinal surgical consultant for Plaintiff - Dr. Merola - Direct 607 1 practice called University Orthopedist, where I was 2 the spine surgery consultant that was working on their 3 spinal surgical patients. 4 Q. At that time were there other -- other than 5 you being the spinal consultant were there -- was 6 there a general orthopedic practice going on? 7 A. Yes. 8 Q. Can you tell the jury the names of two other 9 orthopedic doctors that were in that practice that 10 didn't do spine surgery that dealt with other 11 orthopedic surgeons? 12 A. Steven Toulipolous and Charles Demarco. 13 Q. Back in 2009, did University Orthopedic 14 Practice where you were working as a consultant, did 15 they accept work related accidents into the practice, 16 and all of the special rulings and procedures that 17 come along with work related accidents? 18 A. Yes. 19 Q. Is it, if you take one work related accident 20 you need to take them all, correct? 21 A. Yes. 22 Q. Does your current practice accept work related 23 accidents, and all the rulings, procedures? 24 A. Yes. 25 Q. Everything that comes with that? Plaintiff - Dr. Merola - Direct 608 1 A. Yes. 2 Q. Have you ever testified in court on behalf of 3 a patient of yours that was also a client of Sacks and 4 Sacks, a construction worker who was injured on a work 5 site? 6 A. Yes. 7 Q. Are you being paid for your time away from 8 your practice doing the surgeries, seeing the post 9 surgical visits of your patients? 10 A. Yes. 11 Q. And did you cancel the day that you previously 12 planned, whether it was surgery, or seeing the 13 patients when you performed surgery on them? 14 A. Yes. 15 Q. And I'm stating it, but is it not a fact that 16 every spinal surgery requires immediate follow up with 17 the patient in your office after they get out of the 18 hospital? 19 A. Yes. 20 Q. What rate are you being compensated for your 21 day away from the practice, and the hospital? 22 A. $650.00 per hour. 23 Q. And did you and I meet prior to your 24 testifying here today to go over the case of Michael 25 Gambale, medical care you've given him? Plaintiff - Dr. Merola - Direct 609 1 A. Yes. 2 Q. Did we also go over MRI films, and did you 3 select images that you determine would be best suited 4 to illustrate Mr. Gambale's injuries, or conditions to 5 this jury? 6 A. Yes. 7 Q. Did we also prepare for your testimony here 8 today? 9 A. Yes. 10 Q. How did-- you can refer to your notes if you 11 want, when did Michael Gambale first become a patient 12 of yours? 13 A. Michael first became my patient in July of 14 2009. 15 Q. Can you tell the jury the date? 16 A. Sure. 17 Q. We're not going to go over every note. Tell 18 them the date he was your -- 19 A. First day I saw Michael was on July 20th of 20 2009. 21 Q. Did you take a history on that date? 22 A. Yes. 23 Q. Do an initial evaluation? 24 A. Yes. 25 Q. What was the history that you took from Mr. Plaintiff - Dr. Merola - Direct 610 1 Gambale? 2 A. So he came into the office reporting that 3 there was an injury sustained at work on July 17, 4 2009. 5 Q. I'm going to stop you sometimes. When you 6 state you were evaluating someone for acute injuries, 7 tell the jury what that medical word means acute to a 8 physician, or to you? 9 A. Acute basically means something that has 10 happened recently, been a short period of time as 11 opposed to chronic, which means something happened 12 over a long course of time. 13 Q. Continue with the history as to how the 14 accident happened and what he was doing? 15 A. So, there was a history of a fall occurred on 16 July 17th of 2009, and he had come in with complaints, 17 chief complaints and symptoms relating to his neck, 18 his back, the left side of his body, and the right 19 shoulder and arm. 20 Q. And in addition to that, did you write on the 21 first day right shoulder elbow and arm? 22 A. Correct. 23 Q. Again it's in evidence, you're allowed to read 24 from it. You don't have to work of memory. What did 25 he -- it's in there, but we're only dealing with the Plaintiff - Dr. Merola - Direct 611 1 first note, did he tell you had he seen any of the 2 other medical professionals prior to coming to you? 3 A. Yes, he had seen his medical doctor. 4 Q. Did he also tell you about the emergency room? 5 A. Yes. 6 Q. What complaints of pain did he make to you, if 7 any? 8 A. So, he had indicated that he had significant 9 and severe pain, and difficulty with his abilities to 10 walk because of the pain in those body areas that I 11 mentioned his neck, his back and his extremities that 12 is his arms and his legs. 13 Q. Regarding any your words significant trauma in 14 the past, using those words significant trauma, did he 15 tell you he had any significant trauma in the past? 16 A. No significant trauma in the past, correct. 17 Q. Did you do a physical examination? 18 A. Yes, I did. 19 Q. I'm not going to do it for every exam, just 20 tell us what you found when you first saw Mr. Gambale 21 approximately on three days after the accident? 22 A. So, as part of the physical exam I first saw 23 him I observed him to be alert, and oriented, which 24 meant that he was communicative, and he had his 25 faculties about him, so he can provide me with a good Plaintiff - Dr. Merola - Direct 612 1 history and at least communicate with me and I can do 2 a decent exam on him. He was complaining about some 3 headaches and some difficulty at night, cranial nerve 4 exam which is the nerves that come out of your brain 5 and control your eyes and muscles in your face were in 6 tact. I didn't notice any cranial nerve abnormalities. 7 There was palpable spasm in his neck, as well as his 8 back. 9 Q. I stop you only when you state that someone 10 that Mr. Gambale he has severe pain and spasm, was he 11 describing those, your words, his words? 12 A. When it's part of the history section that is 13 a subjective complaint. When it's part of the 14 physical examination section, it's part of my 15 observation of the patient. 16 Q. So, just taking the word it is in evidence, he 17 has severe pain, spasm and tenderness present in the 18 neck and back what does that mean? 19 A. That means that when looking at, or observing 20 his body, and palpating the muscles that are in his 21 body, particularly in his neck, and his back, they 22 were spasm which meant that they were involuntarily 23 contracting, so he can feel involuntary contractions 24 of the muscles in order to prevent those portions of 25 his body from continuing to move, and be painful. Plaintiff - Dr. Merola - Direct 613 1 Severe would be to the point whereby the spastic 2 contractions of muscles would inhibit his abilities to 3 actually move normally. 4 Q. Would that comport with when he was in his 5 medical doctor's his internist who is actually an M.D. 6 would that comport with a note that's stated Mr. 7 Gambale had cervical range of motion decrease due to 8 pain, is that what you just described caused his 9 cervical motion on the date of the accident to be 10 decreased? 11 A. Yes, so pain and spasm such that he would 12 inhibit your body from moving in a normal manner, 13 correct. 14 Q. Please continue, and if you can tell us what, 15 if any, findings, are you done with the findings on 16 the neck in the physical examination? 17 A. Yes. Spasm and tenderness palpable in his 18 neck and back, then moving down his body. With 19 respect to his shoulders I noted that he had painful 20 arcs of motion in his shoulders. That means when you 21 are taking a shoulder through a passive range of 22 motion, passive being myself moving the actual 23 shoulder joint myself, you can palpate spasm in the 24 muscles of the shoulder joint through an arc of motion 25 so a shoulder motion involves not only being able to Plaintiff - Dr. Merola - Direct 614 1 extend that joint away from your body, but also 2 rotating it. So that was a painful arc with palpable 3 spasm that was noted on both sides of the shoulders. 4 Q. And what, if any, physical testing did you do 5 upon him? 6 A. So, physical testing itself is the range of 7 motion testing, and a neurological testing as well as 8 joint ranges of motion. For example, the shoulder 9 joint and right elbow joint as well. 10 Q. Tell the jury what straight leg raise means? 11 A. Straight leg raise is something called a 12 provocative test. When you're doing a straight leg 13 raise, you are stretching the nerve that goes down the 14 back of your leg, large nerve that goes back the back 15 of your leg, known as the sciatic nerve. When you're 16 doing straight leg raising, what you're doing is 17 you're straightening out the patient's leg and pulling 18 on the sciatic nerve, so if there is inflammation, 19 swelling, or irritation of that nerve, that particular 20 maneuver will reproduce pain in the nerve itself, and 21 what you'll feel is the body's involuntary response, 22 which is a contraction to try to prevent you from 23 continuing to straighten out the leg. 24 Q. Any other positive findings that you had in 25 your physical examination, either to the neck, or the Plaintiff - Dr. Merola - Direct 615 1 back using your notes if you can tell the jury what 2 you found? 3 A. So, let's see, going down the body, the 4 shoulders down to the right elbow painful arc of 5 motion. Neurological dysesthesia with a decrease in 6 pinprick and tactile sensation in the C4, that's the 7 cervical 4 through cervical 6 root distributions. 8 The left hip and left foot and ankle 9 demonstrated pain during range of motion. There was a 10 positive straight leg raise noted on the right side at 11 50 degrees of extension of the leg, and on the left 12 side at 40 degrees. With the lower back what was 13 known as a positive spinal phalanx movement was 14 appreciated, that's a provocative tests whereby you 15 extend or bend backwards in the lower back area 16 palpate for spasm which is reproductive of pain going 17 down the legs. That testing maneuver was positive. 18 Gait wise he was walking with a limp, and a forward 19 bent gait pattern which is known as a kyphotic 20 pattern. There is a decrease and deep tendon reflexes 21 which included his biceps, reflexes, and the brachial 22 radialis reflexes in the arms, and the quads, and 23 achilles in the lower back. 24 Q. Do you have anything else, doctor? 25 A. That's the bulk of the physical exam. Plaintiff - Dr. Merola - Direct 616 1 Q. The jury has learned that the diagnosis can 2 mean assessment, when you say plan -- withdrawn. 3 What was your initial diagnosis then what was 4 your plan? 5 A. So, my diagnosis for this gentleman was that 6 he had sustained traumatic injuries to his neck, and 7 his back. He had evidence of what's known as 8 radiculopathy that is disfunction of nerve roots in 9 both the neck and low back areas. Also painful injury 10 to the right shoulder, the left shoulder, the elbow, 11 and the hip and foot and ankle complex on the left 12 side. 13 Q. Prior to testifying here today, and in your 14 treatment of Mr. Gambale, did you have occasion to 15 review all of his medical records, his emergency room, 16 the records of Dr. Demarco, Toulipolous, the 17 Defendant's physicians, all of the records prior to 18 testifying here today? 19 A. Yes. 20 Q. During your treatments of him, did you, before 21 we move off the first note, did you the review, the 22 emergency room records, x-ray, and the records of Dr. 23 Mark from the physician he saw before you on the day 24 of the accident? 25 A. Yes. Plaintiff - Dr. Merola - Direct 617 1 Q. What was your plan with regard to -- 2 withdrawn. So, what was your underlying diagnosis? 3 A. The underlying diagnosis was radiculopathy 4 with extremity injuries. 5 Q. Did you, looking at your notes in the plan, 6 did you suspect an underlying diagnosis of herniations 7 because of the radiculopathy, is that what you 8 suspected on that date? 9 A. Yes. 10 Q. You wrote that down? 11 A. Yes, I did. 12 Q. How did you want to determine on that date 13 whether or not he had herniations to these areas that 14 were having what you just told the jury is 15 radiculopathy? 16 A. So, the next step in order to correlate my 17 physical findings with what I suspect is the diagnosis 18 is to obtain further diagnostic imagining studies my 19 assessment was for an MRI. 20 A. It was -- is it your understanding that 21 authorization is required for the MRI. 22 A. Yes. 23 Q. Any of the treatment that Mr. Gambale has to 24 undergo because this is a work related accident? 25 A. Yes. Plaintiff - Dr. Merola - Direct 618 1 Q. To date, and the jury knows from openings, to 2 date have all of your surgeries, treatments, medical 3 care, has it been authorized, have you been 4 compensated for it? 5 A. Yes. 6 Q. Looking at the Plaintiff's 5A, looking at the 7 lordosis of Michael Gambale while he was in the 8 emergency room, do you agree with the radiologist at 9 the hospital holding up 4B that this is an abnormal 10 result, and that the -- that there is a straightening 11 of the normal lordosis due to spasm? 12 A. Yes. 13 Q. Is that -- would that be consistent with 14 falling a full story suddenly and unexpectedly, and 15 having your neck move uncontrollably? 16 A. Yes, sir. 17 Q. Did there -- Can you tell the jury the 18 difference between x-ray and MRI, and when you do that 19 can you tell them on an x-ray what you suspected a 20 herniation? 21 A. The major difference is x-rays are a way of, 22 if you think about an x-ray as a very, very, very 23 bright light that shines through your body, then 24 leaves an image on a film, the image that it best 25 leaves are those portions of your body that are very Plaintiff - Dr. Merola - Direct 619 1 dense such as bones. 2 X-rays are very good at looking at bones, and 3 in fact what you see is the skeletal system most 4 clearly on an x-ray. 5 An MRI is another way of looking at the 6 tissues in your body this time it uses a magnet. That 7 magnet magnetizes the things that you're made out of, 8 and then looks at the way that particular magnetic 9 field causes the tissues of your body to demonstrate 10 an image. 11 MRI's are much better at looking at the softer 12 portions of your body such as the discs. So, you can 13 use those tests in conjunction with each other, 14 they're different and look at different things in 15 different ways. 16 Q. Now, you're an orthopedic spine surgeon, do 17 you have an occasion on a daily basis to look at and 18 interpret and review x-rays, MRI's CT scans? 19 A. Yes. 20 Q. You've told the jury you do the number of 21 surgeries you do per year, per week, do you rely on 22 and interpreting radiologists who writes a report 23 about an x-ray, or MRI, or do you in treating a 24 patient as a board certified spinal surgeon actually 25 look at the x-rays, MRI's, CT scans, and interpret Plaintiff - Dr. Merola - Direct 620 1 them yourself? 2 A. I need to look at the actual films themselves 3 and correlate them with the patient. 4 Q. It sounds silly, did you ever with an 5 available film do a surgery or treat a patient without 6 looking at the MRI film, or x-ray films that are 7 available? 8 A. No. 9 Q. Did Mr. Gambale -- when Mr. Gambale did the 10 MRI, did Mr. Gambale do the MRI's to the neck and back 11 that you ordered? 12 A. Yes, he did. 13 Q. You can use your notes. What was your 14 interpretation of the MRI of both the neck and the 15 bock? 16 A. I did have an opportunity to look at MRI's of 17 his neck and back. The MRI's were demonstrable of 18 they were able to show there was some herniations in 19 his neck, as well as his lower back that correlated 20 when with the physical findings that I had seen when I 21 initially saw him. 22 Q. And once you found out there were herniations 23 in his neck, and his back, what did your plan then 24 become? 25 A. So -- Plaintiff - Dr. Merola - Direct 621 1 Q. For Mr. Gambale's treatment? 2 A. At that point in time when I have a 3 correlation for his present condition, and we have 4 evidence of herniations, I would make a recommendation 5 which I did to start some conservative treatment for 6 those herniations which is rest and activity 7 modifications in order to rest the injured body part 8 areas, to decrease inflammation, medications, physical 9 therapy, then eventually something called epidurals, 10 steroid injections to also try to decrease 11 inflammation and swelling in the areas where the 12 herniations are. 13 Q. I'll just state for right now maybe you're 14 jumping ahead in the beginning when Mr. Gambale when 15 you first learned on sometime around July 23rd 2009, 16 or shortly thereafter that he had herniations in his 17 neck and back, what were you considering at that time, 18 did you refer him for physical therapy? 19 A. Yes. In fact I referred him for not only had 20 I referred him for orthopedic consultation for his 21 extremity injuries, but I also sent him in for a 22 neurological consultation for the radiculopathy that 23 he had then referred him for further treatments, 24 including physical therapy, yes. 25 Q. You told us about Dr. Demarco and Toulipolous, Plaintiff - Dr. Merola - Direct 622 1 did you refer him to Dr. Demarco for right elbow pain? 2 A. For his extremity injuries which included the 3 elbow, yes. 4 Q. Were you aware that in the beginning he was 5 complaining of ankle pain as well? 6 A. Yes. 7 Q. Were you treating him for those injuries that 8 you referred him out for? 9 A. No, not specifically. 10 Q. What is the name of neurologist who you 11 referred Mr. Gambale out to? 12 A. Dr. Hausknecht. 13 Q. Was Dr. Hausknecht part of that University 14 Orthopedic Practice, or did he have his own practice? 15 A. He had his own practice. 16 Q. What was the name of that? 17 A. I believe it's called Complete Care. 18 Q. Just roughly, briefly, can you tell the jury 19 why you would refer Mr. Gambale to a neurologist, 20 given the symptoms and complaints he was making to 21 you? 22 A. One of the things, one of the issues was that 23 he had also had some headaches. He also reported some 24 forgetfulness at night with that history of trauma. I 25 wanted to make sure there wasn't anything going on Plaintiff - Dr. Merola - Direct 623 1 neurologically with his central nervous system that is 2 his brain, also neurologically the neurologist can 3 make recommendations for medications as well, and also 4 observe and treat him for conservative treatment with 5 physical therapy. 6 Q. Okay. With the court's permission, I'm going 7 to ask that Dr. Merola step down just to interpret MRI 8 films? 9 A. That's fine, and the same offer if you need to 10 move to see the film. 11 Q. He saw Dr. Hausknecht within a week of seeing 12 you? 13 A. Yes. 14 Q. You got those records as part of your record. 15 When you refer someone out, do you get the record and 16 do you speak to the doctor who he is treating with? 17 A. Yes. 18 Q. Were you aware from the beginning of treating 19 Mr. Gambale early on that he had had a prior MRI to 20 his back only in 2008? 21 A. Yes. 22 Q. Were you aware that this read as a bulge? 23 A. Yes. 24 Q. Can you step down, doctor. Going to -- I'm 25 going to put up 43A. It is a MRI of -- it's an Plaintiff - Dr. Merola - Direct 624 1 enlargement of one of the views of the MRI of Mr. 2 Gambale. It was done on 4-30-2008. The jury has 3 gotten the anatomy from Dr. Mandelbaum, but I will put 4 the model here in case you want to describe anything 5 to the jury, and we'll put a diagram, Plaintiff's 12. 6 Can you tell the jury what they're seeing on 7 this -- with the MRI? 8 A. So, this is an MRI, a side-view MRI of the 9 lower back. 10 Q. Is that called sagittal, as opposed to axial? 11 A. Yes. 12 Q. Using this diagram, Plaintiff's 12, sagittal, 13 could be taking a view if you were to slice a person 14 in half? 15 A. Yes. 16 Q. Axial would be a view that takes one level 17 down at a time looking at it as if you were looking up 18 and down through the head? 19 A. Correct. Yes. This is a side-view of the 20 lower back. It is of Mr. Michael Gambale. It is from 21 Doshi Diagnostic dated April 30th of 2008. What we 22 see on the MRI is we're looking at the gray squares 23 are the vertebral bodies of the lumbar spine. In 24 between each gray square we see an ovoid smaller 25 structure, those are the discs, and those lie in Plaintiff - Dr. Merola - Direct 625 1 between all of the squares. The vertebral bodies are 2 numbered 1 through 5. The disc that is, are in 3 between the vertebral bodies take the name of the 4 number of the bone that's above and below. For 5 example, if we look at the bones between L4 and L5 6 there is a disc between L4 and L5. We call that the 7 L4/L5 disc, because it's sandwiched in between the 8 fourth and fifth vertebral bodies. 9 To the right of this view you see some gray 10 lines. These gray lines are inside of an area of 11 lighter signal. This is the area of the spinal canal. 12 The gray lines that you see in this area are the nerves 13 in your lower back. You can actually start to see 14 portions where those gray lines start to make their way 15 out of the spinal canal. 16 Q. I would like you to assume during opening 17 statements, so you can explain it, I explained to the 18 jury that the spinal cord is a thick solid cord until 19 it gets to the L1, then it breaks into the cauda 20 equina, or horse's tail to the dura. Tell them when 21 you show them the cervical they can see the difference 22 between the spine signal cord, and the dura? 23 A. We're looking at the lower portion of this 24 diagram right now in the area where the roots are. 25 The cord is continuation of your brain and the cord is Plaintiff - Dr. Merola - Direct 626 1 a solid structure, and that cord generally ends 2 somewhere in the neighborhood of about L1 or L2. 3 After it ends it still has nerve roots that it needs 4 to send into your legs and those nerve roots travel 5 through the lower portion of the lumbar spine from L1 6 level all the way down through the sacral levels, or 7 that portion of your lower spine that's connected to 8 your pelvis 9 Q. Take a look at this spine, and tell if there 10 are any abnormal or positive findings on this 2008 11 film. 12 A. When you look at this film, you look at all 13 the vertebral discs. They all lineup on top of each 14 other in a very symmetrical way. The next thing you 15 do is look at the discs themselves. You can see that 16 all of the discs have a uniform color to them. 17 Q. Is that called signal, if a radiologist is 18 interpreting it? 19 A. Yes. When you're describing the color of an 20 MRI, although it's all black, white and gray, it's 21 referred to a white signal. If you see it as white, 22 it's because that magnet gives off signals. When a 23 radiologist interprets an MRI, they talk about the 24 signal, the signaling characteristic of the disc are 25 all uniformly gray. The signal characteristics of Plaintiff - Dr. Merola - Direct 627 1 spinal fluid are white, because fluid shows up on an 2 MRI as being brighter, whiter. 3 Q. And can you tell the jury the difference 4 between a bulge, and a herniation? 5 A. So, when you're describing what a disc looks 6 like, there are certain terms that are used. When 7 you're talking about a bulge, a bulge is a protrusion 8 of disc material that means disc that is outside the 9 confines of the vertebral bodies. 10 So, if you follow the outline of the vertebral 11 bodies, and look at this dark black line along the 12 edge of the back of the vertebral bodies, anything 13 that protrudes beyond the back edge would be 14 considered a disc protrusion. The question is it a 15 bulge, or is it a herniation. Bulges for the most 16 part are symmetrical, that is they go all the way 17 around the vertebral body in a very symmetrical 18 capacity. If you took a balloon and squished that 19 balloon between your hands, that balloon would squash 20 out around the outside of your hands in a symmetrical 21 way. 22 Herniation is different because a herniation 23 is asymmetrical. If you squash that same balloon, but 24 a portion of the balloon wasn't as thick as the rest 25 of the balloon it would stick out in that area Plaintiff - Dr. Merola - Direct 628 1 herniate in that area. Herniation is in fact when a 2 disc herniates rather than bulge, is there a tearing 3 of the annulus fibrosis, thus making the nucleus 4 pulposus come out. 5 A. The disc is made up of two major pieces. When 6 you're looking at it from top down is made up of two 7 major pieces, they're cartilage, but different kinds 8 of cartilage. The inner core is a very soft squishy 9 jelly like cartilage. The outer ring also known as 10 the annulus fibrosis is the Latin term for ring, is a 11 hard fiber tough ring like the outside of a basketball 12 or football where the inside is like the jelly on the 13 inside of a donut. 14 In order for the jelly to come outside of the 15 ring, the ring needs to have a deficit, or defect, or 16 a tear. So, when there is a tear like you would have 17 in a ball, or a crack in the pastry of a donut, it 18 allows that jelly to come out. That's when you have a 19 herniation. 20 Q. Can a herniation be caused by trauma? 21 A. Yes. 22 Q. Now, I want to put an issue to rest whether or 23 not an accident in December of 2010 caused a 24 herniation to Mr. Gambale's L5/S1, or the fall from 25 that he had on the date of the accident. I'm going to Plaintiff - Dr. Merola - Direct 629 1 put before you, and you can first talk to the jury 2 when about it, then compare it to the 2008. What's 3 going up for you is Plaintiff's 8 in evidence. Its 4 the MRI study of 7-23-09 of Michael Gambale. Can you 5 please tell the jury and show the jury in any abnormal 6 findings six days after he fell one story on a 7 construction site to his lumbar spine? 8 A. So, we're looking at the same side, or 9 sagittal view image of the lower back. For a 10 comparison sake, we'll look at the same image 11 projection which is on the right side of this image, 12 whereby we once again see the vertebral bodies as 13 squares. We see the discs as ovoids. We see that the 14 vertebral bodies lineup on each other. We see that 15 the discs all have a preserved signal and they're all 16 rather uniform throughout the lower back, and we see 17 the spinal canal containing the nerves and cerebral 18 spinal fluid. 19 We go to the bottom portion where the sacrum 20 attaches to the lumbar spine and we look at the disc 21 between the LS and S1 segment. If we once again draw 22 a line, if there was a way -- 23 Q. I'm going to give you a pen, just so the jury 24 can using the model, the spine model even though the 25 bend, that's the person's front, correct? Plaintiff - Dr. Merola - Direct 630 1 A. Yes. There's what's typically known as if I 2 look at this plastic model, and I make it mirror where 3 I am right now, the cervical spine has a curve to it 4 that goes backwards like this, so that the C of the 5 curve is in the back of your neck? 6 Q. That's the lordosis? 7 A. That is the lordosis; is that correct. 8 Q. Due to trauma that's when it can straighten 9 out? 10 A. Correct. 11 Q. The thoracic spine, or your upper back has a C 12 that goes the other way, because these C's need to 13 balance themselves out. If you have one going 14 backwards like this, your thoracic, to balance your 15 neck has to go the opposite way, then you have another 16 one down below that in your lumbar spine, which now 17 has to go the other way around. So, a side-view of 18 the spine looks a little bit like an S, because it's 19 trying to balance itself out in the side-view to keep 20 you upright in the lower back. It's the same thing 21 you see the same type of a lordosis that you see in 22 the cervical spine, bending backwards. What I'm going 23 to as you to do, doctor, just for purpose of time, I 24 want you to explain everything you can for the jury. 25 You've already told the jury a herniation would be Plaintiff - Dr. Merola - Direct 631 1 where the disc material extends out past the vertebral 2 body. I did take this red pen on the exhibit. Draw a 3 line from end plate to end plate, and tell the jury if 4 any disc material extends past any of the two 5 vertebral bodies that it sits between? 6 A. So, if we're looking at L5, and we're looking 7 at S1, and we look at the end plate to end plate of 8 L5, back edge, we look at the end plate of S1, the S1 9 back edge what we see is beyond the area where the 10 back edges come into alignment with each other there 11 is a dark cloud. 12 Q. I'm going to do this. I'm going to take a 13 Post It, and put it between the two red lines. What 14 is that material that appears to be on the right side 15 of the Post It? 16 A. So, this dark cloud. This material. 17 Q. I'm going to bring it a little closer? 18 A. That material that has a darker contrast than 19 the cerebral spinal fluid itself is disc material, 20 what's known as herniated nucleus in the area of the 21 spinal canal. 22 Q. Can you tell the jury the difference between a 23 T1 and T2 image? 24 A. Now, the T1 image is an image whereby fluid or 25 water is very bright. So, one of the ways you can Plaintiff - Dr. Merola - Direct 632 1 tell that is when you look at the cerebral spinal 2 fluid in the canal, it's white. 3 Q. MRI's take both T1 and T2 on every MRI, right? 4 A. Correct. 5 Q. The image that's next to the T1 image is T2 6 image. What that does is fat shows up brighter on 7 this image, and water shows up it's more gray. These 8 types of different contrast can help delimitate 9 different portions of your body, portions of your body 10 that either contain more or less water, so if you vary 11 the signal strength and image you can get better 12 contrast between different types of body parts. On 13 the T2, you'll notice that cerebral spinal fluid is 14 darker, but the fat that's inside the spinal canal is 15 brighter, and the fat that's underneath the skin is a 16 bit brighter than it is on T1? 17 Q. I don't want to rush you. We may come back to 18 this on Monday if you come back. Can you actually 19 draw a red mark on the T1, is that the T1 or T2? 20 A. This is T2. 21 Q. On T2 can you draw it so we can see anything 22 that would be passed the red line instead of outlining 23 the body, just draw a line. Okay. 24 A. So, we're looking at that material. 25 Q. What is that, what you just circled? Plaintiff - Dr. Merola - Direct 633 1 A. That's what we're looking at on the T1, which 2 is disc material coming outside of the disc on the 3 spinal canal. You can see it abutting up against the 4 fat. 5 Q. What is the definition of that? 6 A. Herniated in contact with what's known as the 7 thecal sac, or covering of the nerves. 8 Q. Is this film the July 23, '09, does it show 9 something different than the 2008 at that level? 10 A. So in this film what you see is you see a 11 large portion of disc material inside the spinal canal 12 area. 13 Q. Do you agree with the original interpreting 14 radiologist of the 2008 that is a bulge not sticking 15 out into the canal. 16 A. This disc is much more consistent with a lot 17 of the other disc that you see here that represent 18 symmetrical outcropping of discs. 19 Q. I'm going to do it quickly. So, there was a 20 herniation present six days after the accident, is 21 that correct? 22 A. Yes. 23 Q. In the lumbar spine I'm just going to hold up 24 Plaintiff's 44 A, this would be one of the MRI's he 25 had many. This is an MRI that is done only a few Plaintiff - Dr. Merola - Direct 634 1 months ago. So, past the car accident in 2010, did 2 the herniation increase that much in 2003 -- - or at 3 2013 or at all? 4 A. Once again if you look at this, and you apply 5 those same criteria in terms of the amounts of disc 6 material behind the vertebral bodies, you see it's 7 pretty much the same as it was on the 2009 exam. 8 Q. Okay. I'm going to put up Plaintiff's 6A also 9 an MRI taken, but this time of the neck 7-23-09 of Mr. 10 Gambale. 11 Can you please interpret that for the jury? 12 A. This is a side-view of the cervical spine, and 13 what you see is the base of the brain, and then we 14 also see this dark structure up here, this is the 15 nasal cavity pharynx and trachea. Behind that you see 16 the vertebral bodies of the neck, the big tall one 17 that looks like it has a hat on it is C2, then 18 counting down from there we have 3, 4, 5, 6, and 7. 19 Q. For timing purpose, can you circle anything 20 that's not supposed to be there. You said there were 21 herniations. Tell the jury what levels had 22 herniations, then -- 23 A. So, if you look at this MRI, what you're 24 looking at is, you're looking at herniated disc 25 material at C4/C5, C5/C6. Plaintiff - Dr. Merola - Direct 635 1 Q. That would be the white material in the black 2 canal, correct? 3 A. Correct. 4 Q. We'll stop here. 5 THE COURT: It's time, because we have to 6 allow the staff to leave. 7 MR. McCRORIE: We'll continue when you come 8 back, doctor. 9 THE WITNESS: Okay. 10 THE COURT: Ladies and gentlemen, it's now 11 just about 1:00. As you were told, we're going to 12 recess for the day today at 1:00. We're going to return 13 on Monday at 2:00, so today we work just the morning. 14 On Monday we will be here just the afternoon. So, make 15 sure you're up here in the courtroom ready to go at 16 2:00. I anticipate that we will work only afternoons 17 this coming week, because I have other case calendars. 18 I have a motion calendar in the morning every day next 19 week actually, so we're going to do our best to use our 20 time officially, but we're going to be working Monday 21 2:00 p.m. likely Tuesday at 2:00 p.m. We'll try to let 22 you know as we go forward what the witnesses' schedule 23 is, to the extent that that helps you plan in terms of 24 work, or childcare needs, or anything else we want to 25 try to let you know as best we could ahead of time. Plaintiff - Dr. Merola - Direct 636 1 I know you know this already, but please don't 2 discuss the case amongst yourselves or with anyone else. 3 Please don't have any conversations about the case with 4 any of the attorneys, parties, or representatives from 5 either party. Happy Lunar New Year. We will see you 6 back here Monday 2:00 p.m.. 7 Thank you very much. 8 THE COURT OFFICER: All rise. 9 (Whereupon, the jury left the courtroom.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25