451 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND - CIVIL TERM - PART TP17 2 ----------------------------------------------X MARIO NICHILO, 3 Plaintiff, 4 -against- 5 WENGER CONSTRUCTION CO,. INC., THE CITY OF NEW YORK and THE NEW YORK CITY SCHOOL 6 CONSTRUCTION AUTHORITY, 7 Defendants. 8 ----------------------------------------------X 102729/2012 Supreme Courthouse 9 26 Central Avenue Staten Island, New York 10301 10 May 10, 2017 11 B E F O R E: 12 HONORABLE ALAN C. MARIN, JUSTICE 13 14 A P P E A R A N C E S: 15 16 SULLIVAN, PAPAIN, BLOCK, MCGRATH & CANNAVO, P.C. BY: VITO A. CANNAVO, ESQ. 17 120 Broadway New York, New York 10271 18 Attorneys for the Plaintiff 19 FABIANI, COHEN & HALL, LLP 20 BY: KENNETH J. GORMLEY, ESQ. JOANNE BLAIR, ESQ. 21 570 Lexington Avenue New York, New York 10022 22 Attorneys for the Defendants 23 KELLY JENKINS-CARMICHAEL 24 OFFICIAL COURT REPORTER 25 KCJ 452 1 THE COURT: Let's go on record. 2 COURT CLERK: All rise. Honorable Alan C. 3 Marin presiding, Richmond County Supreme Court, Part TP17 4 Wednesday, May 10, 2017. 5 Continued trial, Nichilo versus Wenger. 6 All parties remain the same. 7 THE COURT: Counsel are the same? 8 MR. CANNAVO: That's correct. 9 MR. GORMLEY: Yes, same appearances. 10 THE COURT: We can be seated. I sent out 11 e-mails about scheduling and a number of witnesses. 12 Maybe we can get to that in a minute. 13 The jury is all here. Is your economist here 14 and ready to go? 15 MR. CANNAVO: Ready to go, Judge. 16 THE COURT: You said you got some housekeeping? 17 MS. BLAIR: Yes, it can wait until after the 18 witness. I just want to -- 19 THE COURT: Does it relate to the whole thing 20 about the physiatrist? 21 MS. BLAIR: Yes, yes; I know Mr. Gormley has 22 something. 23 MR. GORMLEY: Could we ask Ms. Kucsma to leave 24 the courtroom, I have one preliminary matter I would like 25 to put on the record. KCJ 453 1 THE COURT: Ms. Kucsma, do you mind leaving; I 2 do this with witnesses all the time. 3 (Whereupon, the witness leaves the courtroom.) 4 THE COURT: Okay. Go ahead. 5 MR. GORMLEY: Sure, your Honor, one element of 6 the damages alleged based on the 3101(d) provided by the 7 Plaintiff's counsel with respect to this witness, is a 8 $725,000 alleged loss, due to the cost of health 9 insurance. Mr. Nichilo and Mrs. Nichilo both confirmed 10 in their testimony that he is covered completely by her 11 health insurance in connection with her job at Staten 12 Island University, and as a result, we request that the 13 Court preclude her from testifying. We are offering 14 evidence as to the cost of the health insurance; 15 obviously, they didn't lose it, he's been covered for 16 five years, and there is no expectation that he will not 17 be able to be covered. 18 MR. CANNAVO: May I just address that, Judge? 19 I want to address that. 20 THE COURT: Even if that's so, you may find an 21 economist coming in and saying, look, his salary and his 22 package of benefits is at $102 and that includes -- that 23 may include -- well, you know, whatever; you know, a 24 substantial amount for health care. I don't know how 25 we're going to break this thing out. KCJ 454 1 Let Mr. Cannavo speak. 2 MR. CANNAVO: Judge, and I objected to this, 3 just as I will if they try to bring anything out about 4 social security. These are not collateral sources; it's 5 his wife's benefits. And not a collateral source to 6 offset his loss. And Judge, by doing that, they unfairly 7 are saying the wife can never stop going to work. What 8 if she wants to go off. It's his loss, Judge, here. The 9 loss here is Mr. Nichilo's loss of benefits, and that is 10 part of the economic loss. They can't substitute his 11 loss by saying, well, he got it through his wife. That's 12 just wrong, Judge; and it's tangential to the whole 13 issue. So to preclude Ms. Kucsma from explaining what 14 the economic loss to Mr. Nichilo is, from the loss of 15 benefits, is unfairly prejudicing the Plaintiff and 16 giving them a benefit they are not entitled to. 17 THE COURT: The let me think about whether it 18 is collateral or not; and what is duplicative; but your 19 economist may explain. Give me one general gut of this 20 750, you divided by 15,000, you get 50 years -- 21 MR. GORMLEY: The way she calculated, your 22 Honor, is she basically -- uhm, give me a half a second, 23 to get to the page -- it's just a straight out 24 calculation. 25 MR. CANNAVO: But it's not an offset. KCJ 455 1 MR. GORMLEY: If I may, I am not offsetting -- 2 THE COURT: I am trying to get to the gross 3 number. 4 MR. GORMLEY: Basically, she estimated average 5 replacement cost was 17,772 per year in 2014 dollars, and 6 then she projected a five percent growth rate, year over 7 year, but he is not losing this; he hasn't loss it yet, 8 he hasn't lost a penny of it yet. 9 MR. CANNAVO: Of course, he loses it -- 10 THE COURT: My get before you heard Mr. Cannavo 11 and he said no, to one is going to say here's what the 12 package is worth, that included health insurance; this is 13 another advantage. I think it's fair game. If it's 14 collateral source, the jury won't hear it. If it's some 15 kind of duplication, for example, sometimes people talk 16 about loss of social security, but they forget to talk 17 about the fact that now the employer -- now the employee 18 doesn't have to pay 7.05 percent. So that maybe 19 duplication. I am not going to block it yet. You will 20 get a chance on cross, and you'll get a chance. I mean, 21 you've heard about the health insurance thing, they'll 22 get a chance through their expert. 23 MR. CANNAVO: Judge, but they shouldn't be able 24 to bring out anything about the fact that while his wife 25 gets health benefits -- that's like saying, well, his KCJ 456 1 wife was at home, he lost his job, she went to work and 2 so therefore, that's an offset for his loss. It doesn't 3 work that way, Judge. This is his individual loss. This 4 was a benefit he had. They don't get to offset by 5 saying, well, your wife has benefits, it's just wrong 6 Judge. 7 MR. GORMLEY: Unless she can get up there and 8 testify in 2015, he lost $13,995 in health insurance 9 benefits, when he didn't lose it. 10 MR. CANNAVO: He did lose it, Judge. How did 11 he not lose it if he didn't get paid from the union? 12 Judge, this is just wrong. Judge, I really need a 13 ruling. They cannot get into the fact that the wife gets 14 benefits, and therefore, he doesn't lose anything. He 15 did lose it, Judge. Had he been working, he would have 16 gotten that benefit, which he's entitled to receive. 17 They can't offset it through the wife. It's just wrong. 18 THE COURT: The nature of the different 19 positions may make that what -- if you had two people 20 both working for Nassau County government with top 21 benefits, either one can get a family plan. One person 22 goes off the payroll, I mean, it may be a little bit of 23 and issue, the individual and the family thing; we didn't 24 get too deeply into the wife's -- the way the wife 25 handled it. It first sounded like maybe she doubled up KCJ 457 1 her hours just to qualify for health insurance, she 2 didn't go full-time until -- 3 MR. CANNAVO: But Judge, you can't punish her. 4 You can't punish them, that he got hurt, now she has to 5 work more to get benefits, that would be punishing these 6 Plaintiffs, Judge. You cannot deduct what he lost 7 because the wife is getting benefits; you cannot do it. 8 THE COURT: That might -- that just might -- 9 MR. CANNAVO: Judge -- 10 THE COURT: Let's look at benefit package, put 11 a dollar figure on it. On the other hand -- 12 MR. CANNAVO: That is not how she calculates 13 it. 14 THE COURT: If somebody says to you, here's a 15 particular thing, if you ever out of work, we'll make 16 sure that we give you counseling and fly you around the 17 country to some of these other contracts; it doesn't 18 happen. The benefits may not be there. If it's an 19 amount that's put into a fund, then it compounds. I will 20 give you enough to create a record. 21 MR. GORMLEY: One last thing -- 22 THE COURT: Of course. 23 MR. GORMLEY: So you know, we have been hearing 24 Mr. Nichilo's -- you know, Local 79 through and through; 25 in 2003, 4, 5, 6, 7, 8, he didn't work in the union. He KCJ 458 1 did non-union work. Before that, non-union work. We've 2 got no testimony as to a health benefit in all of those 3 years, because Mr. Nichilo hasn't testified yet. 4 THE COURT: Let's see what the economist has to 5 say. We have talked about putting in the W-2s, W-2s are 6 a little tricky, because you work for more than one 7 employer, but you got to put in the 1040s; you are not 8 going to -- 9 MR. CANNAVO: Judge, she has it reviewed them. 10 You can't go back and say, well, you know he worked in 11 high school at the local 5 & 10. He's working as a union 12 laborer. She's entitled to do that calculation based his 13 current earnings, Judge. This is not new, Judge. This 14 is not the first time we've had an economic projection 15 based on what the guy's current salary is and wages. 16 THE COURT: I understand but you require -- at 17 some point you are required to show W-2s and tax returns. 18 MR. CANNAVO: I have them, I thought they were 19 all going in. 20 MR. GORMLEY: They are going to, but when are 21 they in, because quite frankly how we going to break out 22 how the witness is going to break out union or non-union. 23 THE COURT: You have exception on the way the 24 testimony is coming in the 750 is duplicative. I think I 25 laid out what the issues are. You preserve your right. KCJ 459 1 You may be able to get something on cross. When we get a 2 chance to think about it, your economist is coming in 3 either tomorrow afternoon or Friday. 4 MR. GORMLEY: Friday. 5 THE COURT: And maybe we can pursue it then. I 6 will think about it. But I have so little in front of me 7 on his records, the contracts, I don't have the benefit 8 package. 9 MR. CANNAVO: Well, Judge, we have all that. 10 THE COURT: When you asked the witness how many 11 hours he worked, he said he doesn't know. Now, in the 12 union trades, people know their hours, because for 13 example, if you work every 250 hours, you may get another 14 pension -- 15 MR. GORMLEY: 150 in this union. 16 THE COURT: So you really know that. Let's 17 move on. Let's get the witness in here. 18 MR. CANNAVO: I have four questions for her, 19 which will answer all these things. She knows -- she has 20 the benefit package, she knows what it is; let her do 21 that, Judge, and they can cross-examine all they want, 22 with furloughs and everything else. 23 MR. GORMLEY: One last thing on scheduling; I 24 am flying in my economist for Friday. I don't want to be 25 surprised that Dr. Shiau is turning up Friday -- because KCJ 460 1 my economist is flying in, and I have to confirm with him 2 by 5:30 this evening . 3 MR. CANNAVO: I have no problem with the 4 economist. 5 MR. GORMLEY: So I will to confirm him for 6 Friday morning. 7 MR. CANNAVO: Friday morning. 8 MR. GORMLEY: Okay, that's set. 9 THE COURT: That is set. Thank you. 10 MR. CANNAVO: Judge, here is my -- I know, I 11 gathered from your Honor's email about scheduling, and I 12 gather your Honor did not preclude and I didn't take it 13 that your Honor is definitively precluding any witness -- 14 THE COURT: I'm not. 15 MR. CANNAVO: I think there is accumulation and 16 I've taken -- but, Judge, I have taken your email to 17 heart. I now have Dr. Harrison, Dr. Shields -- I talk 18 about the low back. Dr. Shiau will talk about the low 19 back. I think maybe we've already gotten there. 20 The only reason, Judge, that I may need Dr. 21 Shiau -- and it depends how the Defendants approach it. 22 If they -- he is upset about this, Judge, and he will 23 come in and testify -- if they criticize his care and say 24 that it was contraindicated, he is going to want to come 25 in, Judge, to rebut that, because he's a local surgeon, KCJ 461 1 he does not want a record here in the Supreme Court 2 Richmond County saying that Dr. Shaw did something 3 contraindicated. They should speak to their expert; if 4 the expert does not address that, then in the interest of 5 time, I will not bring in Dr. Shiau, but he's lined to 6 come in otherwise, I had him ready for Friday. 7 THE COURT: Let me say this. There are issues 8 when you can get to character and reputation, but 9 rebuttal is not triggered by that issue; it's not going 10 to happen, that is not why he is coming in. He's been in 11 Court before, he knows what to do. 12 MR. CANNAVO: I will bring him in Friday 13 afternoon, Judge. He just had a kid and that is why it 14 is difficult getting him in. I will bring him on that 15 issue -- 16 THE COURT: He's treating? You mentioned him a 17 week or two ago; if you can get him, bring him in, but we 18 want -- 19 MR. GORMLEY: Judge -- 20 THE COURT: We don't want to slow this down. 21 You'll rest on Monday, and he will put on his economist 22 on Friday. Let's get the jury in. 23 MS. BLAIR: We will take the other issues up 24 afterwards. 25 THE COURT: We will get to Rombom and KCJ 462 1 everything else later. 2 MS. BLAIR: Thank you. 3 THE COURT: Rombom is treated? Just so we no? 4 MS. BLAIR: Not for this. 5 MR. CANNAVO: Yes, he is; I can explain that. 6 THE COURT: But there were two other doctors 7 that were mentioned -- Selig? Why not bring one of 8 those? 9 MS. BLAIR: Rombom signed -- 10 THE COURT: I heard this. I got it -- I got 11 the letter. My question is, why don't you bring in 12 Ghamar or Selig, if there are two other -- 13 MR. CANNAVO: Ghamar is not available, she's 14 got physical issues. 15 And they are misstating the record when they 16 say that Rombom is not the treating doctor, Judge, he 17 is -- Judge, I will represent they work as a team. He 18 supervises them; he is in charge of the patient, he knows 19 the patient, he has seen the patient; and so he is the 20 treating doctor. 21 THE COURT: They admitted there were -- 22 MS. BLAIR: Selig is on more of the reports -- 23 THE COURT: But will you let her talk about any 24 of the treatment? 25 MS. BLAIR: It's really Ghamar, certainly. KCJ 463 1 Rombom is the -- 2 THE COURT: I am not asking to you back off. 3 Would you do Selig? Could you get Selig? 4 MR. CANNAVO: Judge, I got -- Rombom is the guy 5 that comes in for them. It would be like in a hospital, 6 you got the young residents and you got the attending, 7 the attending supervises; that is what Rombom does here; 8 that is what he will testify to. 9 MS. BLAIR: Judge, he's the custodian and the 10 administrator. 11 MR. CANNAVO: I will bring him in and your 12 Honor can ask him. 13 THE COURT: Let's get ready for the jury. 14 COURT OFFICER: Jury entering. 15 (Whereupon, the jurors enter the courtroom.) 16 COURT CLERK: All jurors present. 17 Counsel stipulate to a properly seated jury? 18 MR. CANNAVO: Yes. 19 MR. GORMLEY: Yes. 20 THE COURT: Thanks everyone for being here on 21 time. 22 Ready to go, Mr. Cannavo? 23 MR. CANNAVO: I am, Judge. With the Court's 24 permission, Plaintiff will call Kristin Kucsma. 25 K R I S T I N K U C S M A, called as a witness, having KCJ Kucsma Direct/Cannavo 464 1 been first duly sworn, was examined and testified as follows: 2 COURT CLERK: State your name and address for 3 the record. 4 THE WITNESS: Kristin Kucsma, K-R-I-S-T-I-N 5 K-U-C-S-M-A; and my -- 6 COURT CLERK: You can give us your business 7 address. 8 THE WITNESS: Sure; thank you. 293 Eisenhower 9 Parkway, Suite 190, in Livingston, New Jersey 07039. 10 Thank you. 11 THE COURT: Thank you. 12 DIRECT EXAMINATION 13 BY MR. CANNAVO: 14 Q Ms. Kucsma, did there come a time that my office 15 asked you to do an economic analysis regarding wage and 16 economic loss for Mario Nichilo? 17 A Yes. 18 Q And did you do that for us? 19 A I did. 20 Q And did you run the numbers and come up with some 21 calculations? 22 A I did, indeed; yes. 23 Q Before I have you do that, can you just introduce 24 yourself to the Court and jury, tell us about your 25 educational background; who you are and what you do? KCJ Kucsma Direct/Cannavo 465 1 A Sure. As I said a moment ago, my name is Kristin 2 Kucsma; I am an economist; and very specifically, I'm the 3 chief economist and managing director of the Sobel Tinari 4 Economics Group. 5 That group is an economics consulting group. We 6 work on a wide variety of economic-related matters. A lot of 7 the work do I does involve working with attorneys, both 8 Plaintiff's attorneys and Defense attorneys, to calculate 9 economic damages in litigated matters. 10 In addition to that, though, I also work with local 11 municipalities. I've worked with the State of New Jersey on 12 other types of economic research projects. For example, one 13 project I worked on involved evaluating the council 14 affordable housing in the State of New Jersey, making 15 projections about population, the number of units each 16 municipality would need to build, and so on. So those are 17 some of the things I currently do as an economist. 18 I have been doing this type of work since January 19 of 2008; meaning, I've been with the Sobel Tinari Economics 20 Group since then. 21 Before then, I enjoyed what I like to call my first 22 career, which was as a college professor. I was a member of 23 the full-time faculty at Seton Hall University and Drew 24 University; and I was also an Adjunct Professor at Rutgers 25 University and St. Peter's College in Jersey City, New KCJ Kucsma Direct/Cannavo 466 1 Jersey. 2 Q How long did you do that and what were you 3 teaching? 4 A I taught, primarily, in the Department of Economics 5 to both graduate and undergraduate levels. On occasion, I 6 also taught finance and statistics. I'm a numbers girl, so I 7 like to teach those types of courses. 8 I started teaching when I was a graduate school in 9 or around 1991, 1992; and I taught at the college level for 10 about 14 years. I stopped teaching in the summer of 2006. 11 Q Okay. Where did you to go school? 12 A I received my Bachelor of Arts degree in economics 13 from Seton Hall University, where I was graduated with 14 highest honors. I also received my Master of Arts degree in 15 Economics from Rutgers University. 16 And in addition to my Master of Arts degree in 17 economics, I also completed all of my course work in the 18 doctoral program and passed my qualifying examinations. 19 Q All right. What is the field of economic analysis? 20 A Economic studies, really, a wide variety of things. 21 Many things that people are very familiar with, for example, 22 one, of the things I study on a regular basis is inflation, 23 prices. In other words, I study why sometimes prices go up 24 very quickly. What does that mean for small businesses. 25 What does it mean for small households and budgeting and so KCJ Kucsma Direct/Cannavo 467 1 on. 2 I also study things like labor markets and examine 3 trends in labor markets; again, to have an understanding why 4 unemployment rates are very high during some periods; again, 5 what that may mean for individuals when they're laid off; 6 what it means for small businesses. 7 I study money markets. I study things like 8 interest rates. And these are just some of the things I 9 study on a regular basis to have an understanding of why 10 these things rise and fall, and really, more importantly, 11 what impact that has, again, on small households, businesses, 12 consumers and so on. 13 Q All right. Now, you did an economic analysis for 14 Mr. Nichilo? 15 A Yes, I did. 16 Q I have some documents you brought with you. 17 Can you tell us what you did and explain what that 18 process involved? 19 A Sure. 20 Q Again, all of your testimony is going to be within 21 a reasonable degree of certainty in the field of economic 22 analysis and economics? 23 A Yes. 24 MR. CANNAVO: Judge, may I present this board 25 to the witness, so that maybe she can stand up and KCJ Kucsma Direct/Cannavo 468 1 explain what she did? 2 MR. GORMLEY: Can I see the board? 3 THE COURT: Is it a blow up from the report? 4 MR. CANNAVO: It's a summary of her report 5 Judge. 6 MR. GORMLEY: Judge, just -- 7 MR. CANNAVO: Judge, it's the 3101(d) it's 8 basically a reflection of the report. 9 THE COURT: Right; but you saw the report? 10 MR. GORMLEY: I saw the 3101(d). 11 MS. BLAIR: No, Judge, I never saw the report. 12 THE COURT: Take a moment to look at it. I 13 mean, you know without question, the witness can say all 14 of that without this thing. She can say, well, he was 15 earning so much money and the cost of living is a 16 particular percentage, it is going to go up, that 17 particular item is going to go up so much over the years, 18 and this will reflect what she's going to say. 19 MR. CANNAVO: She is going explain it. 20 THE COURT: Well, it will be either identified 21 for evidence, or you -- we either have to have an 22 agreement or I will have to allow it, under the rules, 23 that comes in. That's why I asked whether those numbers 24 were in the report. Do you want to take a look at the 25 report? KCJ Kucsma Direct/Cannavo 469 1 MR. GORMLEY: No, I'm pretty familiar with the 2 3101(d); it's several pages. My first two look exactly 3 like that, but as we go along, your Honor, if I see 4 something that's not within the 3101(d), I reserve my -- 5 THE COURT: I misunderstood you. The 3101(d) 6 has attached sheets that were 8 and a half -- 7 MR. GORMLEY: They did not. The 3101(d) -- 8 MR. CANNAVO: They are her worksheets, so she 9 doesn't have to write it out. 10 THE COURT: You said you saw two pages? 11 MR. GORMLEY: I saw the 3101(d). 12 MR. CANNAVO: Judge, the 3101(d) is ten pages 13 long. 14 THE COURT: Is it the same ten pages? Let me 15 take a look. 16 MR. CANNAVO: Judge, let me show you. 17 THE COURT: Without objection? 18 MR. CANNAVO: There's really no difference than 19 what you have. 20 MR. GORMLEY: I always had a copy; is there 21 only one 3101(d), right? 22 MR. CANNAVO: Judge, it's charts and everything 23 else in there. 24 MS. BLAIR: Is there not a supplement? 25 MR. GORMLEY: There is no supplement to it KCJ Kucsma Direct/Cannavo 470 1 though, right? 2 THE COURT: Let's see where we are on that. 3 Okay. Maybe -- let's say there's a couple numbers that 4 the witness wants to supplement. We have to show the 5 witness the page, have it refresh her recollection and 6 testify and not have it go to the jury. Okay. Put it 7 up. What do you have; is it two things or one thing? 8 MR. CANNAVO: It's a whole series of numbers, 9 that explain it, so that she doesn't have to write it all 10 out. 11 Q Ms. Kucsma, if you could step down. 12 A Sure. 13 Q Give us your analysis? 14 A Sure. The first -- first thing I did in this case 15 was, you know, review some basic information about the case; 16 so I needed to have an understanding, of course -- 17 MR. GORMLEY: Your Honor, may I move over 18 there? 19 THE COURT: Of course. 20 A So I needed to, obviously, have a basic 21 understanding of some of the facts of case. The date on 22 which Mr. Nichilo was injured, his date of the birth; I 23 obviously needed to have some basic information about what 24 his job was at the time of his employment, and I also needed 25 to have some basic information about what he had been KCJ Kucsma Direct/Cannavo 471 1 earning. 2 And you will see some of that basic information 3 listed here. He has injured on March 21, 2012. Born on 4 March 2, 1974. He was a construction laborer at the time. 5 He was a member of the Mason Tenders Local Union 79 at the 6 time; and of course, he was married and had children. 7 Now, in addition to this information, I also 8 reviewed several other documents; very specifically, 9 documents that were related to Mr. Nichilo's compensation. 10 My analysis really focuses on what Mr. Nichilo 11 would have continued to earn, not only by way of a paycheck, 12 but in terms of various union benefits. What he would have 13 continued to earn, if he had not been injured in 2012; if he 14 continued working as construction laborer. 15 In order for me to accurately calculate what 16 Mr. Nichilo's compensation would have been going forward, I 17 needed to review these union documents: collective bargaining 18 agreements, what we call wage and benefits schedules, summary 19 plan descriptions. These are all union documents that really 20 clearly identified, for me, things like how much 21 Mr. Nichilo's wages would have increased year over year. 22 That information is contained in these contracts. 23 There was also information provided to me 24 specifically about the types of fringe benefits that 25 Mr. Nichilo had been eligible to receive, and had in fact KCJ Kucsma Direct/Cannavo 472 1 been receiving as a union member. He was receiving family 2 health insurance. He was also receiving what we call an 3 annuity. 4 An annuity is kind of like a 401K plan, for every 5 hour that Mr. Nichilo worked, his employers were required to 6 put money into a savings plan, and that money would be 7 available for Mr. Nichilo to use at some later date. 8 He also was enrolled in a pension plan. And again, 9 I reviewed what's called a summary plan description. In that 10 summary plan description, there was a formula that told me 11 very specifically how Mr. Nichilo's pension benefits would be 12 calculated. So if he hadn't been injured in 2012, he would 13 have continued to work in the union until he retired. Once 14 he retired his paycheck would stop, but he would start 15 getting a monthly check for these retirement or pension 16 benefits. So I needed to review all the documents necessary 17 to accurately calculate those benefits. 18 And then after I reviewed all that information, 19 before I actually began my analysis, I needed to layout what 20 we call the elements of economics damages, or the components 21 of analysis; and that is what you see here. So in other 22 words. My calculations ultimately are broken into three 23 basic categories. 24 I started by calculating, very specifically, how 25 much more money Mr. Nichilo would have been paid, if he had KCJ Kucsma Direct/Cannavo 473 1 been able to continue working as a construction laborer to 2 requirement. 3 Number 2, as I mentioned before, I had to 4 separately calculate the pension benefits. I had to take 5 that formula that I mentioned and determined what Mr. 6 Nichilo's pension or retirement benefits would have been if 7 he had been able to continue working and get those checks 8 later. 9 And then last, but not least, I also considered the 10 fact that as a union member, he had been receiving 11 employer-sponsored family health coverage. 12 Now, before I could actually begin my calculations, 13 there was a little bit of economic research that I needed to 14 do. The first research I needed to do involved something 15 called Mr. Nichilo's statistical retirement age. 16 In order for me to calculate how much more money he 17 would have earned, if he hadn't been injured in 2012, I 18 needed to form an opinion about how many more years would he 19 have worked, would he have worked another two years as a 20 construction laborer, other ten years, another 27 years. In 21 other words, I needed to determine Mr. Nichilo's statistical 22 retirement age; and in order to do that, I did some research, 23 looked at some US government data, and I looked very 24 specifically at the actual experience of people in the United 25 States. More specifically, I looked at the actual experience KCJ Kucsma Direct/Cannavo 474 1 of roughly 38-year old men, who had no diploma and no GED. 2 And this, of course, represented the age 3 Mr. Nichilo was about 38 years of age when he was injured, 4 and I also considered information provided to me about his 5 level of education. The fact that he had no formal diploma 6 or no formal GED. 7 Based on my research, based on the actual 8 experience of men in that group, I was able to determine that 9 on average, 38-year old men, with no GED, no diploma retire 10 at or around the age of 62.8 years. 11 So, how many more years would Mr. Nichilo had 12 worked, if he hadn't been injured no 2012? The answer is, on 13 average, through January 3, 2037. So he would have continued 14 to get a paycheck until January of 2037, at that point, he 15 would retire, and then that is when he would start to get 16 those pension benefits, those retirement checks, each month. 17 Now, the other thing I needed to do was also take 18 into account something called the work-life ratio. In other 19 words, when I look at the actual experience of 38-year old 20 men, with no diploma no GED, as I mentioned a moment ago, I 21 find that on average, they work through the age about 62, 63 22 years of age. 23 What that doesn't mean, though, is that 38-year old 24 males will work continuously straight through from age 38 to 25 age 63. In fact, when I look at the actual experience of men KCJ Kucsma Direct/Cannavo 475 1 in this group, I find that they typically do not work 2 continuously for another roughly 25 years, and the reason 3 they don't work continuously for another 25 years is because 4 things happen. They may get injured. They may get ill. 5 They may have a child that gets sick. They may need to take 6 time off of work to care for their sick chilled. 7 But what I was able to determine, again, by looking 8 at the actual experience of 38 year old males, with no 9 diploma, no GED, is that they spend about 78.5 percent of the 10 time, of that roughly 25 year period, they spend about 78.5 11 percent of the time working and earning money, which means on 12 the flip side, they spend about 21.5 percent of the time not 13 working for a variety of reasons. Again, they become 14 injured, ill, a sick family member and so on. 15 So what you're going to see in just a moment is 16 that in each and every year, I am going to reduce my 17 calculations by 21.5 percent, to reflect the fact that in any 18 given year, Mr. Nichilo likely would have missed work for a 19 little while, not have been paid, and it certainly would not 20 be reasonable to compensate him for money that he would not 21 have earned anyway. 22 Now, the last little bit of research I needed to do 23 before I could actually begin crunching the numbers is I also 24 needed to determine Mr. Nichilo's statistical life 25 expectancy, and I will tell you how did that in just a KCJ Kucsma Direct/Cannavo 476 1 moment, but the reason I needed to do that is because I told 2 you just a moment ago that if Mr. Nichilo hadn't been injured 3 in 2012, he would have continued working until 2037, then 4 would he have retired and then he would have started to get 5 pension checks. How long would he get those pension checks? 6 Well, he would get them for the rest of his life. So in 7 other words for me to calculate those pension benefits, I had 8 to determine just how long, at least on average, Mr. Nichilo 9 is likely to live. 10 In order to determine Mr. Nichilo's statistical 11 life expectancy, I looked at US government data, again, and I 12 looked very specifically at something called the National 13 Vital Statics reports. And again, I looked at the actual 14 average experience of 38-year old males; and based on that 15 data, I was able to determine that on average, a 38-year old 16 male will live to the age of 78.53 years. 17 So Mr. Nichilo would have retired in 2037, started 18 collecting pension benefits and he would have gotten a check 19 every month until 2052. 20 Q Just let me ask you: These are averages? It 21 doesn't mean he wouldn't work more or less or he wouldn't 22 live more or less? 23 A That is correct, yes. 24 Now, in order to calculate these loss of earnings, 25 I already determined the first piece of the puzzle, and that KCJ Kucsma Direct/Cannavo 477 1 is, if Mr. Nichilo hadn't been injured in 2012, how many more 2 years would he have worked until approximately 2037. 3 But the second question I had to answer was, if Mr. 4 Nichilo had continued to work as a construction laborer in 5 Local 79 through 2037, how much on average would he have 6 earned each year. 7 In order for me to determine how much on average 8 Mr. Nichilo would have earned each year, I started by simply 9 examining how much he had, in fact, earned in the years 10 leading up to the date of injury; very specifically, I looked 11 at Mr. Nichilo's W-2 wage and tax statements, and based on my 12 review of those documents, I was able to determine, for 13 example, in 2008 Mr. Nichilo had earned $67,787. In 2009, he 14 actually worked for several employers, he earned $30,027 15 through some non-union employment and $43,774 through his 16 union employment. In 2010, he earned $42,757 and some on. 17 Now, I did have to take into account, though, two 18 things. I had to take into account the fact that in the year 19 2009 and in the year 2012, Mr. Nichilo was in the union, in 20 fact, he rejoined the union about midyear of 2009, and 21 obviously, he was injured in March of 2012; so he did work 22 for the union for Local 79 in 2009 and 2012, but he obviously 23 didn't work for the full year in either one of those years 24 for the union. 25 So, for example, in 2009 through his union work for KCJ Kucsma Direct/Cannavo 478 1 about a half a year, he earned $43,743. He put in 1,050 2 hours of union work, but that is for about half year. If he 3 worked the entire year of 2009 through the union, he would 4 have earned approximately $84,181 and, of course, he would 5 have worked approximately 2,019 hours. 6 In 2012, of course, he also was working for the 7 union, but only up until the day on which he was injured. So 8 yes, he did only earn $10,435 in 2012; so that's because he 9 didn't work the entire year. In fact, if he worked the 10 entire year, I determined he would have earned $41,740, and 11 that's based on the fact that through roughly the first one 12 quarter of the year, January, February and March, he earned 13 $10,435, and I multiplied that by four and I get roughly 14 $41,740. Likewise, yes, he only worked 290 hours for the 15 union in 2012; again, that's because he only worked for 16 roughly the first three months of the year; if he had worked 17 for the entire year, he would have worked 1,160 hours in that 18 year. 19 So ultimately, then the question for me is, if 20 Mr. Nichilo had continued to work year after year, as a 21 construction laborer in Local 79, on average how much would 22 he have earned each year. 23 In order for me to calculate that, I considered 24 what he would have earned if he had worked the entire year of 25 2009 in the union, about $84,000. I took into account what KCJ Kucsma Direct/Cannavo 479 1 he did, in fact, earn in 2010, 2011, and I also considered 2 what he was on tract to earn in 2012; roughly 41, $42,000. 3 And I took an average of those four numbers and I was able to 4 determine based on you how much he, in fact, earned in Local 5 79 from mid 2009 through the date of injury, if he had been 6 able to continue working, he would have earned on average 7 $49,343 going forward. 8 Certainly, that was more than he earned in some 9 years, but it was less than what he was on track to earn, for 10 example, in the year 2009. 11 So, I certainly assumed going forward, he had some 12 very good years, like he had in 2009, he also would have some 13 years that weren't as good, that's why I used the average 14 going forward. 15 Likewise, if Mr. Nichilo had continued to work for 16 a Local 79, I estimate that he would have worked on average 17 1,114.2 hours each year. Again, he would have had some very 18 good years, like the year he was on tract to have in 2009, 19 remember 1,000 hours in just six months out that of year. 20 And I also of course built in the fact that he likely would 21 have had some not so good years, since that is part of his 22 pattern of employment in the past. 23 Now, I'm almost ready to actually do the 24 calculations, but before I can actually calculate how much 25 more money Mr. Nichilo would have earned if he hadn't been KCJ Kucsma Direct/Cannavo 480 1 injured, I needed to do two more things. First of all, I had 2 to take into account, that as a union worker, as a member of 3 Local 79, had Mr. Nichilo continued working, his wages would 4 have increased year over year. 5 And I know that for a fact. And I know that really 6 for one specific reason, I reviewed the wage and benefits 7 schedules that are published and posted by Mason Tenders 8 Local 79. I have documents that show me how much these union 9 members, in fact, are paid per hour year over year. 10 And based on my review of those documents going as 11 far back as 2007, I was able to actually calculate on average 12 how much these wage rates had been increasing year over year. 13 In this case, I looked more specifically at the 14 recent years because, of course, I'm trying to determine how 15 much Mr. Nichilo would have earned in the recent years; 2013. 16 '14, '15, '16. 17 Based on my review of those collective bargaining 18 agreements and those wage schedules, I was able to determine 19 that if Mr. Nichilo had continued working according to the 20 Local 79 documents, his wage rates would have increased on 21 average 2.4 percent each year, during this period from 2013 22 through the present time. 23 So for example, he would have earned $49,353 in 24 2013, if he had been able to work during that year. In 2014, 25 he would have earned 2.4 percent more, $50,537 and so on. KCJ Kucsma Direct/Cannavo 481 1 Now, the other thing I needed to do, though, before 2 I could actually calculate the lost earnings, is I also 3 needed to make several adjustments to these numbers up here. 4 These numbers that you see up here are called the gross 5 earnings, because these numbers represent how much Mr. 6 Nichilo would have earned in each year, 2013 through the 7 present time, if he never missed a day of work, ever; never 8 got injured, never got ill, there was no unemployment, if he 9 never missed a day of work, if he had no job-related 10 expenses. 11 So if I assumed he had no union dues, he didn't 12 have to pay to get to and from work, he never had a hot dog 13 for lunch, for example, and I also -- this figure does not 14 take into account the extra compensation he got in the form 15 of these annuity payments. So all of these things I have to 16 take into account. 17 You see them listed down here, in each and every 18 year, I am going to make three downward adjustments to these 19 numbers. I am not going to use these numbers to calculate 20 lost earnings. In each and every year, I am going to start 21 by reducing these numbers by 21.5 percent in every year and 22 that is to take into account what we discussed earlier, the 23 probability or the likelihood that Mr. Nichilo may have 24 missed work a couple of days here, a couple weeks there, 25 because he got sick, he got injured, his children got sick. KCJ Kucsma Direct/Cannavo 482 1 Number two, I also had to take into account the 2 probability that Mr. Nichilo may have missed work now and 3 then, not because he got sick or his children got sick but 4 because there simply might not have been work for him. He 5 may have been, quote, unemployed. 6 In order for me to determine the appropriate 7 adjustment to make every year for unemployment, I took into 8 account two things, I started by looking at US government 9 data; very specifically, I looked at data published by the US 10 Department of Labor, and I looked at the average unemployment 11 rate for males who were the same ages that Mr. Nichilo would 12 have been, if he continued working. So males who were 38, 13 40, 45, 50, 55, 60, all the way up until he retired. 14 Once I examined the average unemployment rate for 15 males in that category, I also had to take into account the 16 fact that if Mr. Nichilo had become unemployed, he would not 17 have been completely without income. It's true, perhaps, he 18 wouldn't have a paycheck, but he could have filed for 19 unemployment benefits and had at least a small check coming 20 in for these unemployment benefits. 21 So once I took both of those things in together, I 22 determined that it was necessary for me to make another 23 downward adjustment, each and every year in the amount of 2.6 24 percent to account for the probability or the likelihood of 25 unemployment. KCJ Kucsma Direct/Cannavo 483 1 Q I just want to ask you: This may not come to pass 2 and he may not have these downward adjustments? 3 A That is correct; these are average figures, so 4 again, some people certainly will not miss work this 5 frequently and others may miss work a little more often. 6 Now, the third and final downward adjustment I made 7 each year, was to take into account what we call job 8 maintenance expenses. The fact that, for example, as a union 9 worker, Mr. Nichilo had to pay union dues. I certainly did 10 assume that he got a cup of coffee in the morning and had a 11 hot dog or a pretzel at lunchtime. He had transportation to 12 and from; tools for the job, for example. 13 And in order for me to determine, specifically, 14 what portion of his income, if you will, he spent on these 15 types of expenses, I reviewed some of his tax returns and in 16 those tax returns there was information about what we call 17 unreimbursed business expenses. So that allowed me to see 18 very specifically the types of job-related expenses Mr. 19 Nichilo had; and based on my review of that information, I 20 was able to estimate that on average, he spent about 21 20 percent of his earnings on all of these job-related 22 expenses. 23 Now, I did make one upward adjustment each year and 24 that is because as I described to you earlier, in addition to 25 his paycheck, for every hour that Mr. Nichilo worked, he got KCJ Kucsma Direct/Cannavo 484 1 money that came right to him in the form of a paycheck, that 2 he would spend right away. And in addition to that, his 3 employers also put money into this savings plan or this 4 annuity plan. Mr. Nichilo didn't technically get that money 5 as part of his paycheck, but it was compensation. It was put 6 into an account, that he could draw on at a later date. 7 And in order for me to sort of estimate how much 8 money was going into that other account, I reviewed, number 9 one, the collective bargaining agreement and the wage and 10 benefit schedules that I mentioned earlier. 11 Those wage and benefit schedules tell me very 12 specifically how many dollars per hour employers have to put 13 into that plan. So for every hour that the Plaintiff worked 14 in this case, his employers would have to put in ex-number of 15 dollars, and that changed over the years, $6.50 per hour, 16 $7.50 per hour, into this sort of annuity fund. 17 I also reviewed, though, an actual document that 18 showed me how much money had specifically been put into his 19 annuity fund, and based on that, my review of those 20 documents, I determined that on average, the employers were 21 putting in an additional 12 percent of Mr. Nichilo's earnings 22 into this annuity. 23 So, for every hour he worked, he was getting paid 24 money and he was also getting paid 12 percent of that on top, 25 that was going into this annuity fund. KCJ Kucsma Direct/Cannavo 485 1 So ultimately then, in order to calculate the lost 2 earnings, I started by asking a very simple question, and 3 that is, if Mr. Nichilo had not been injured in March of 4 2012, how much would he have earned from that time through 5 the present time. 6 Well, based on my review of his actual earnings, if 7 he had been able to work the rest of year in 2012, if he 8 never missed a day of work, had no job-related expenses, he 9 would have earned $41,740. In 2012, he would have earned 10 $49,353, and so on. These are those gross earnings figures I 11 showed you before. 12 In order to calculate though, in fact, how much 13 Mr. Nichilo would have earned through the present time, I had 14 to make those three downward adjustments in each and every 15 year, and I had to add in the 12 percent contribution into 16 the annuity fund. 17 So for example, in the year 2013, if Mr. Nichilo 18 never missed a day work, had no job-related expenses, and his 19 employers forgot to put money into the annuity fund, he would 20 have earned $49,353. 21 He likely would have been sick and there, may have 22 been become unemployed, certainly, had job-related expenses, 23 and his employers couldn't forget to put money into that 24 annuity fund, they were contractually bound to do, so when he 25 factual those things into account, I determine that KCJ Kucsma Direct/Cannavo 486 1 Mr. Nichilo would have received compensation in the amount of 2 $34,715 if he had been able to work as a construction laborer 3 through Local 79 in 2013. 4 Q And that's taking into account all these 5 adjustments that you believe you have to make? 6 A That is correct. 7 And I simply perform that calculation each and 8 every year up through the present time. 9 Q How much are you deducting on average for doing 10 this? 11 A On average, in each year, I am giving Mr. Nichilo 12 about 70 cents on the dollar; so I am making in total, about 13 a 30 percent adjustment downward, each and every year to 14 these gross earnings figures. 15 Q All right. 16 A Based on my analysis then, I was able to determine 17 if four Nichilo hadn't been injured in March of 2012, if he 18 had been able to continue his union employment through the 19 present time, he would have earned an additional $181,863. 20 Now, based on my research, of course, I had 21 determined that if Mr. Nichilo hadn't been injured in 2012, 22 he wouldn't have stopped working now, he would have continued 23 working until he was about 62, 63 years of age, he would have 24 continued working through his statistical date of retirement, 25 January 3, 2037. KCJ Kucsma Direct/Cannavo 487 1 So now I had to calculate how much Mr. Nichilo 2 would have continued to earn from today's date for the next 3 20 years through 2037 if he had been able to continue working 4 as a Local 79 construction laborer. 5 Q And that assumes he doesn't work longer than 62? 6 A That is correct, yes. 7 Q Or gets a promotion to foreman or steward or 8 something like that. 9 A That's correct. These calculations are based very 10 specifically on the position that he had at the time of 11 injury and on average, what he had been earning at or around 12 the time of his injury. 13 In order to calculate how much Mr. Nichilo would 14 have earned going forward, I really performed exactly the 15 same calculations that I just described. I started in each 16 and every year, by determining what Mr. Nichilo's gross 17 earnings would have been; if he never missed day of work, had 18 no job-related expenses, no annuity, how much would he have 19 earned each year and then in each and every year, I made 20 about a 30 percent downward adjustment to take into account 21 periods of missed work, those job-related expenses, and so 22 on. 23 Now, the one thing, though, that I had to do in the 24 future years, was I had to do a little more research to 25 determine, on average, how much Mr. Nichilo's earnings would KCJ Kucsma Direct/Cannavo 488 1 have increased going forward. When I looked back at how much 2 his earnings would have increased in the recent past, in 3 2013, '14, '15 so on, I had a contract; I had a collective 4 bargaining agreement that actually showed me how the wages 5 increased on average during that period. There is no 6 contract for the next 20 years. 7 So I had to do little extra research, and the extra 8 research involved several things. First of all, I looked 9 back before 2012, and I looked back at what the wages had 10 been through Local 79 as far back as the year 2007. And 11 since I had that information, I was able to look at how much 12 wages had been increasing on average in this union before the 13 recent recession; and this was very important information for 14 me because of the nature of the collective bargaining 15 agreements. 16 Collective bargaining agreements, as the name 17 suggestions, these are agreements that come out of unions and 18 employers negotiating, and they negotiate for 6 months, a 19 year, two years, and they finally agree on certain benefits 20 and certain wage increases. 21 But the significance of this for me is, that a 22 collective bargaining agreement those wage rates, are really 23 going to be a function of what the economy was like when the 24 negotiating took place. 25 So, for example, when I looked at the collective KCJ Kucsma Direct/Cannavo 489 1 bargaining agreements that were in place during the 2 recession, I saw wage increases of three percent, even 3 sometimes more than three percent; which wasn't at all 4 surprising to go because those agreements had been 5 negotiated, of course, in the years before the recession hit. 6 In the years before the recession hit, wages for 7 construction workers in 2007, for example, they increased by 8 nearly 4 percent, and that is when that collective bargaining 9 agreement was being negotiated. 10 Likewise, when I looked at the collective 11 bargaining agreement that determined how much wages were 12 increased in 2013, '14, and '15, this collective bargaining 13 agreement had been negotiated during the recent recession. 14 So during a period where, of course, the economy was 15 relatively weak. 16 Now, in addition to considering what the wage rates 17 had been, prior to the recent recession, I also examined data 18 published by the US Department of Labor. Very specifically, 19 I looked at data that showed me how much wages for 20 construction workers have, in fact, increased in past years. 21 As I mentioned just a moment ago, when I looked 22 back, for example, at 2007 and I looked at how much wages 23 had, in fact, increased according to the US Department of 24 Labor, for people working in the construction industry, those 25 wages had increased by 3.8 percent in 2007. KCJ Kucsma Direct/Cannavo 490 1 When I also looked at how much wages in the 2 construction industry had been increasing in recent years, I 3 saw a very, very important trend, and that is, I saw that in 4 each and every year since the recession, every year, the 5 wages have not only been increasing, but they've been 6 increasing at a higher and higher rate, and in fact, in 2016 7 the actual increase in wages for workers in the construction 8 industry was 3.1 percent, nearing that pre-recession level. 9 So when I took all of that into account, I was able 10 to estimate that if Mr. Nichilo had continued working going 11 forward, as we get further and further way from the recent 12 recession, his wages would have increased on average 3.8 13 percent each year. 14 And ultimately then, taking into account the fact 15 that Mr. Nichilo's wages would have increased each year going 16 forward, making those downward adjustments each and every 17 year, I was able to calculate that if Mr. Nichilo worked for 18 another 20 years, as a Local 79 union worker, he would have 19 earned an additional at $1,098,087. 20 And this certainly was consistent with what I also 21 seen in Mr. Nichilo's own history of earnings. And the 22 reason this was significant was because, when I looked back, 23 for example, at the year of 2008, he wasn't in the union at 24 this time, which is why I didn't consider that in my 25 calculations, but in 2008, he had the demonstrated capacity KCJ Kucsma Direct/Cannavo 491 1 to earn almost $68,000. 2 So the fact, for example, that by 2023 or 2034, I 3 estimated Mr. Nichilo would have earned about $68,000; that's 4 clearly supported by his own demonstrated earning capacity in 5 past years. 6 Now, once I had calculated how much Mr. Nichilo 7 would have earned going forward, I also, just for comparative 8 purposes, went back and examined how much Mr. Nichilo would 9 have earned through the present time and going forward, if 10 there had been no wage increases at all. 11 So if the economy never recovered and there were no 12 increases whatsoever, just to sort of give some sort of 13 benchmark idea of where we would be if, in fact, there was no 14 economic recovery, construction in New York didn't take off, 15 we know it has, but if it hadn't, what sort of is the worst 16 case scenario. 17 If Mr. Nichilo earned $49,353 in 2013, that's all 18 he ever earned, and he kept earning that, all the way through 19 2037, what would his economic losses be? 20 Well, once again, I made those downward 21 adjustments, I determined that if Mr. Nichilo never received 22 a wage increase, highly unlikely, but if he never did, even 23 then, he would have earned an additional $175,460 through the 24 present time. 25 And if he continued to earn the same amount of KCJ Kucsma Direct/Cannavo 492 1 money every year for the next 20 years through 2037, he would 2 have earned an additional $680,065 from today through his 3 retirement. 4 Q That means there is no increase at all? 5 A That's right. That means that if in 2036, when he 6 is about 62 years of age, he is still earning exactly what he 7 was earning at age 39, this is what the economic losses would 8 be. 9 Q So that means he never gets a raise? 10 A That's right, no increase whatsoever. 11 Q Let me ask you this, is that practical, in your 12 opinion? 13 A No. This is certainly not consistent with, 14 obviously, the collective bargain agreement, economic data, 15 it highly unlikely, if not impossible, that somebody 20 years 16 from now, a union construction laborer, is going to be 17 earning exactly the same amount of money he was earning 20 18 years prior, but again, this gives us sort of a benchmark 19 idea of the worse case scenario. 20 Q Would employees, workers, continue to work for 20 21 years without ever getting a raise? 22 A It is highly unlikely. 23 MR. GORMLEY: Objection. 24 THE COURT: Sustained. 25 Q Go ahead; sorry. KCJ Kucsma Direct/Cannavo 493 1 I just thought I'd break you up a minute. 2 A A appreciate it. Thank you. 3 All right. Now, once I have created the loss 4 earnings of how much additional money Mr. Nichilo would have 5 earned, if he had been able to continue working, the second 6 thing I had to focus on was the benefits. So the annuity is 7 already reflected, my calculation of lost earnings, that was 8 simple because that simply was ex-number of dollars, added on 9 top of his paycheck, for every hour that he worked. 10 However, I had to handle the pension benefits and 11 the health insurance separately, and the reasons I had to 12 handle the pension benefits separately is because ultimately, 13 the amount of money that a union worker gets when he retired 14 when he starts getting that pension check, nine times out of 15 ten, that pension check, the amount of that check, is not 16 determined by how much money your employer puts in for every 17 hour you work, but it, in fact, is based on a formula and 18 that is true for the Mason Tenders Local 79. 19 There is a formula; and you see the formula here. 20 Very specifically, when a union member like Mr. Nichilo 21 retires, the amount of his monthly pension benefit check is 22 calculated by looking at the number of pension credits that 23 he would have earned, and multiplying that by what we call a 24 benefit rate in this case. 25 Based on that review of the summary plan KCJ Kucsma Direct/Cannavo 494 1 description, we were able to determine several important 2 things. First of all, I was able to determine that at the 3 time Mr. Nichilo was injured, he had actually accrued 16 4 pension credits. So I reviewed some documents from the 5 union, and based on that information, he had already 6 accumulated or accrued 16 pension credits. 7 The question for me, then, was if he continued 8 working from March 2012 to 2037, how many additional credits 9 would he have obtained. Based on my review of the summary 10 plan description, a member earns one credit for every 150 11 hours worked up to ten credits per year. 12 So in order for me to calculate on average how many 13 credits Mr. Nichilo would have earned each year, I had to 14 start by determining, on average, how much hours he would 15 have worked; for every 150 hours he worked, he would have 16 gotten one pension credit. 17 You might recall that I mentioned earlier based on 18 how many hours he had, in fact, worked from 2009 through 19 2012, I was able to determine that he had, in fact, or at 20 least was on track to work an average 1,114.2 hours each 21 year. 22 I then adjusted these figures to take into account 23 the probability he may have become unemployed, he may become 24 injured or ill, so I had to make those downwards adjustments 25 again with the number of hours, and when did I that, I was KCJ Kucsma Direct/Cannavo 495 1 able to determine that on average, Mr. Nichilo would have 2 worked 835.3 hours per year. Some years many years, some 3 years less, which is exactly what we had seen, of course, in 4 his own history of employment. 5 If he worked 835 hours per year, you get one credit 6 for every 150 hours work, which means he would have earned 7 five credits per year. 8 So if he had worked through the year 2037, on top 9 of the 16 credits he already accumulated, he would have 10 received an additional 124 credits for a grand total of 140. 11 I am going to plug that into this formula, 140 12 credits times the benefit rate. This benefit rate, though, I 13 had to determine what that would have been in 2037 when 14 Mr. Nichilo would have retired. 15 Q And does that rate change? 16 A It does, yes. That rate currently is $12.50. It 17 does increase, though; and I assumed that this rate would 18 increase year over year, at a rate consistent with the 19 increase in wages. 20 So that by 2037, any union member retiring in that 21 year would receive $26.35 per credit for purposes of 22 calculating the pension benefits. 23 Q Just let me ask you, these benefit rates, what are 24 you basing this on? 25 A This benefit rate, again, was defined in the KCJ Kucsma Direct/Cannavo 496 1 summary plan description and the collective bargaining 2 information provided to me from the union. 3 So this is provided to me in current union 4 documents. The yearly increase is consistent with the US 5 Department of Labor data I reviewed, as well as union 6 documents from both before and after the most recent 7 recession. 8 So in other words, I was able to determine then 9 that if Mr. Nichilo continued to work as a union member 10 through 2037 and retired at that point in time, he would be 11 eligible for pension benefits in the amount of $3,689 per 12 month. Simply, a total of 140 credits, he would have 13 accumulated by that time times a rate of $26.35 per credit. 14 If I take $3,689 and multiply it by 12, I get 15 annual pension benefits in the amount of $44,268. 16 Q And in terms of that benefit, that's a good pension 17 benefit, would you say? 18 MR. GORMLEY: Objection. 19 Q That is what he would be getting? 20 What would he get when he retired in 2037 as a 21 pension benefit? 22 A $44,268 per year. 23 Q Thank you. Now, I didn't see any information in 24 the documents I reviewed about a cost of living adjustment; 25 oftentimes, pension benefits do have a cost of living KCJ Kucsma Direct/Cannavo 497 1 adjustment. So that for example, a member may start out 2 getting $44,268 when he retires and that benefit may go up by 3 ex-percent year over year, I didn't see any information, 4 though, in the documents I reviewed indicating if there was a 5 cost of living adjustment and if so, what it was, so I 6 assumed there wouldn't be. I assumed that in this case Mr. 7 Nichilo would simple continue to get $44,268 every year 8 starting in 2037, when he was no longer working as a 9 construction laborer and continuing through his statistical 10 life expectancy. 11 So, I ultimately calculated, then, that Mr. Nichilo 12 would have started collecting pension benefits in 2037, 13 collected them for the rest of his life, and in so doing, he 14 would have received a total of $695,450 in retirement 15 benefits. 16 Now, once again, just to provide sort of the worst 17 case scenario, I also performed the same calculation assuming 18 that the benefit rate never changed. It was $12.50 at the 19 time Mr. Nichilo was injured, if it was still $12.50 about 25 20 years later in 2037, what would his pension benefits have 21 been? 22 Well, he would have earned a total of 140 credits, 23 five credits per year; if he got paid 12.50 per credit in 24 2037, he would receive $1,750 per month or $21,000 per year. 25 Q And that is again assuming that, down the road, KCJ Kucsma Direct/Cannavo 498 1 there is no change in that pension benefit rate? 2 A Correct. That's assuming that 20 years from now -- 3 or really 25 years -- from the day of the incident, the 4 pension benefit rate is exactly the same as it was 25 years 5 prior. 6 If Mr. Nichilo received $21,000 each year, starting 7 with his retirement in early 2037 and continuing for the rest 8 of his life, if that pension benefit rate remained the same, 9 he would have received a total $329,920 in pension benefits. 10 Q I just want to ask you, in your opinion, is it 11 practical to assume that there will not be any change in 12 these benefit rates or these wages? 13 A No. This benefit rate, in fact, had changed in 14 past years, it had been increased over the past years; and 15 based on my review of the union documents in case and my 16 experience in other cases, I would expect these union benefit 17 rates to increase over time. 18 Now, last but not least, I also had to take into 19 account the fact that as a union member, Mr. Nichilo received 20 employer sponsored health insurance coverage, that means he 21 didn't pay for it, but he received family coverage or health 22 insurance, I should say, for his family. 23 If, of course, he had continued to work through the 24 union, through his statistical day of the retirement, he 25 would have continued is receive the family health insurance KCJ Kucsma Direct/Cannavo 499 1 coverage from 2012 through 2037. 2 And obviously, that health insurance has value. 3 Health insurance is considered to be part of a person's 4 compensation, even though you don't get, for example, $18,000 5 in your paycheck, you're being given family health insurance 6 coverage that cots your employers $18,859 in the marketplace; 7 so it has that sort of monetary value. 8 In order for me to calculate, then, the monetary 9 value of this family coverage, I used as my starting point a 10 figure of $18,859. This is based on research that I did; 11 very specifically, this is based on the data that is 12 published by something called the Kaizer Institute. The 13 Kaizer Institute has been publishing an annual report since 14 about 1999. In each and every year one of the things that 15 the Kaizer Institute does is conduct research about the 16 employer cost of health insurance premiums throughout the 17 country, and they publish that data. 18 This represents the average annual premium for 19 family health insurance coverage in the northeast in the year 20 of 2016. 21 Incidentally, this is consistent with the employer 22 contributions that are reported on the wage and benefits 23 schedules, specifically, for Mason Tenders Local 79. 24 Now, I also had to take into account when I 25 reviewed the Kaizer Institute data, I took into account the KCJ Kucsma Direct/Cannavo 500 1 fact that, the cost of health insurance does not stay the 2 same. In fact, the cost of health insurance typically rises 3 year over year. So in order for me to calculate the value of 4 this health insurance over Mr. Nichilo's remaining working 5 lifetime, I had to take into account the fact that while this 6 insurance might be worth $18,859 in 2016, the value is going 7 to increase over time. 8 In fact, when I reviewed data published by the 9 Kaizer Institute, I was able to determine that on average, 10 health insurance premiums have increased by slightly more 11 than 7 percent since 1999. 12 I didn't use 7 percent, though, because of the fact 13 that in more recent years, we have seen those health 14 insurance premiums increase at a slightly lower right. They 15 continue to increase year over year, but not by that 7 16 percent. 17 So based on that research, I was able to determine 18 then that on average, the cost of health insurance premiums 19 will increase by 7 -- or by 5 percent each year. 20 I calculated the loss of health insurance only in 21 future years. The reason I did that because technically 22 speaking, the health insurance really technically has no 23 quote value in past years; and what I mean by that is, if you 24 go for a year or two without health insurance, nothing 25 happens, technically, you haven't lost anything. However, KCJ Kucsma Direct/Cannavo 501 1 health insurance certainly has value going forward 2 prospectively. 3 So I've taken into account the fact that if 4 Mr. Nichilo would continue working through the union, they 5 would have provided him and his family with health insurance 6 coverage. 7 By 2018, I determined the cost of a family plan in 8 the northeast will cost $20,793. In total then, the value of 9 this health insurance from today through Mr. Nichilo's 10 retirement in 2037, is $646,979; that's what it would cost to 11 go out into the marketplace and purchase an equivalent family 12 plan, starting now and doing so every year for the next 20 13 years. 14 And incidentally, when we get down here, see the 15 year 2036, I've estimated the cost of health insurance for a 16 family plan is going to be $50,039 per year. Sounds like a 17 big number, but in the year 1999, the cost of a family plan 18 was just shy of $5,800; which means between 1999 and now, so 19 that's roughly a little less than a 20 years period, the 20 costs of health insurance premiums has gone up more than 21 three fold. 22 So, based on that, we certainly do expect to see 23 family health insurance premiums 20 years from now, that are 24 in the range of roughly $50,000 per year. 25 And finally, I simply combined -- I should KCJ Kucsma Direct/Cannavo 502 1 mention -- I forgot to mention this -- if on the other hand 2 there is absolutely no increase in health insurance premiums, 3 so there happens to be no increase in health insurance 4 premiums, so that we are still paying 20 years from now 5 exactly the same for health insurance as we're paying today, 6 then I calculated the cost of the lost health insurance at 7 $369,448. 8 So if it still costs $18,859, 20 years from now, to 9 purchase family health insurance coverage, the value of that 10 coverage will be $369,448. 11 And then, I simply summarized all my calculations. 12 The top table, of course, I call it summary with growth. 13 These figures, these are the figures take into account the 14 fact that if Mr. Nichilo had continued working, his wage rate 15 would having up year over year. 16 If Mr. Nichilo continued working, that pension 17 benefit rate, certainly, would not have been the same in 2037 18 as it was in 2012. 19 And this also takes into account the fact that the 20 cost of health insurance premiums will continue to increase 21 year over year through 2037. 22 Taking into account all of those yearly increases, 23 I calculated the total value of the economic loss in this 24 matter at $2,622,379. 25 Very specifically, this figure represents the total KCJ Kucsma Direct/Cannavo 503 1 value of the total compensation that Mr. Nichilo would have 2 continued to earn, both by way of paycheck, benefits, and 3 retirement checks, once he retired, if he had been able to 4 continue working as a Local 79 construction laborer. 5 If, on the other hand, I did look at kind of what I 6 had been calling, the worst case scenario, if I did assume 7 wage rates never went up for 25 years, the cost of health 8 insurance never went up, and that benefit rate never went up, 9 so that people retiring in 2037 would be paid according to 10 the same benefit as people who had retired 25 years earlier, 11 in that case I calculated the total value of economic loss at 12 $1,554,883. 13 MR. CANNAVO: Okay; I don't have anything else 14 to ask. I want to thank you, Mrs. Carmichael, for doing 15 this. Judge, can I offer these calculations into 16 evidence, so that they can have it as a reference point? 17 MR. GORMLEY: Objection, your Honor. 18 THE COURT: Let me do this, very often -- it 19 doesn't happen as much anymore -- an economist will stand 20 up there with pen and paper and write their projections 21 and all of that will come into evidence. Is there 22 anything on there that Ms. Kucsma has not mentioned? 23 Anything on any of the pages that she hasn't talked 24 about? 25 MR. GORMLEY: Can we do it after I KCJ Proceedings 504 1 cross-examine her? 2 THE COURT: Subject to that; anything that she 3 has said that is on there will come in, if there is some 4 other stuff, maybe we will deal with it. All right? 5 MR. CANNAVO: I think a read back would be 6 pretty lengthy. Mrs. Carmichael has just given me the 7 answer. I have nothing else. 8 THE COURT: You want to take few minutes. 9 MR. GORMLEY: Can we take five minutes? 10 THE COURT: Take a few minutes. Let's take ten 11 minutes. Okay, ten minutes. We can go to the restroom. 12 Thank you. 13 (Whereupon, the jurors exit the courtroom.) 14 THE COURT: Step down. 15 (Whereupon, the witness exits the witness 16 stand.) 17 (A brief recess is taken.) 18 THE COURT: I was running through the pages 19 that the jury saw during Ms. Kucsma's testimony; except 20 for Page 5, which I think; is probably harmless -- 21 everything that she's talked about was -- Page 5 had 22 different years with the increases, so you go 48, 50, 55, 23 you know, which she didn't go through the whole 20 years; 24 but the Defendants' economist would have the same benefit 25 of putting something in to the jury. That was the only KCJ Proceedings 505 1 page that wasn't directly hit. I think everything else 2 was actually reached. 3 MR. CANNAVO: She did talk about this one. 4 THE COURT: I am only saying she didn't talk 5 about every line, but I think it's okay. 6 MR. CANNAVO: She gave a summary of the whole 7 thing; she gave a summary -- 8 THE COURT: I don't have a problem with that 9 and your expert will have the same -- 10 MR. GORMLEY: Judge, just let me finish my 11 cross and then -- 12 THE COURT: We won't do it yet; we will decide 13 if there is an issues. 14 MR. CANNAVO: Her folder has the benefits, the 15 W-2s, the whatever. 16 THE COURT: We will have to decide. We're on 17 the record, it's certainly appropriate for an expert 18 economist to infer to the National Statistics and to a 19 Union's, but when you're referring to the individual 20 employers' records, I think we have to put that into 21 evidence. 22 MR. CANNAVO: We have them, Judge. 23 THE COURT: Maybe we'll put the other stuff in 24 evidence, but the individual employee's stuff has to come 25 in; you talking about the wage and benefits of Mr. KCJ Proceedings 506 1 Nichilo -- 2 MR. CANNAVO: The Union, Judge? 3 THE COURT: We don't have to put stuff in on 4 the National Statistics. We can agree on putting stuff 5 in on the Union, it's the benefit plan, their welfare 6 fund annuity, whatever it is. 7 MR. CANNAVO: Yeah, we can put all of that in; 8 we have all that. 9 MR. GORMLEY: Actually, they have been 10 subpoenaed, they are all right here; I'd like to finish 11 with the witness first. I know we had stuff to talk 12 about afterwards -- 13 THE COURT: Are we ready for the jury? 14 MR. GORMLEY: I am ready when you are. 15 COURT OFFICER: Ready for the jury? 16 THE COURT: Yes, Officer. 17 COURT OFFICER: Jury entering. 18 (Whereupon, the jurors enter the courtroom.) 19 COURT CLERK: All jurors are present and 20 properly seated. 21 THE COURT: Okay. Thank you very much. 22 Mr. Gormley will question her now. 23 MR. GORMLEY: May I proceed? 24 THE COURT: Go ahead. 25 CROSS-EXAMINATION KCJ Kucsma Cross/Gormley 507 1 BY MR. GORMLEY: 2 Q Is it Ms. or Mrs.? 3 A Ms.; thank you for asking, though. 4 Q Sure thing. Just to get started, I want to make 5 sure I understand your assumption. 6 Your assumption, if I'm not mistaken, yes or no, is 7 that Mr. Nichilo will be employed continuously, not 8 necessarily full-time, but continuously from now to 2037 as a 9 Local 79 construction worker; is that correct? 10 A No; not continuously. That's why I made an 11 adjustment each year of about 23, 24 percent total, for 12 periods of missed work. 13 Q And that is he why I said not full-time; I don't 14 mean like every single day, I understand how you factored 15 downward to 70 percent; what I mean by continuously is, each 16 year, he is going to work for Local 79? 17 A My calculations certainly are based on his 18 employment and his earnings at the time of injury. Having 19 said that, though, one of the reasons I do build in an 20 adjustment for unemployment is because there certainly is 21 always the probability that he may have become employed by 22 someone else or worked through some other union. 23 But certainly, the most accurate representation for 24 me of his earnings capacity going forward, is to consider 25 what he had been earning at or around the time he was KCJ Kucsma Cross/Gormley 508 1 injured. 2 Q Through the union? 3 A That's correct, yes. 4 Q So, although we might disagree on the word 5 continuous, I don't mean continuously, I appreciate that he 6 is going to have periods of unemployment, he is going to have 7 periods where he is out sick, he is going to have periods 8 where he doesn't go to work, for whatever reason, but your 9 assumption is that his wages and benefits are based on Local 10 79; that's what those numbers are, local 79 numbers? 11 A Those figures are based on that, but again, I'm 12 certainly not, in any way, shape, or form assuming that 13 through 2037, he absolutely necessarily would have been 14 employed in the same position for the same union, for the 15 same employer. That is why I build in that unemployment 16 adjustment. 17 Having said that, though, like I said, the best 18 reflection of what he would have continued to earn going 19 forward, whether it was through Local 79 as a construction 20 laborer, whether it was through some sort of alternative 21 employment, he's to consider what he had, in fact, been 22 earning at or around the time he was injured. 23 Q Okay. He was in the union in 2012, correct? 24 A He was. He had been in the union prior, left the 25 union for a while, come back, yeah; but at the time of KCJ Kucsma Cross/Gormley 509 1 injury, he was a union member. 2 Q Okay. Do you have with you the pension work 3 history? 4 A I believe so; let me see. 5 Q If you don't, I can give you a copy. 6 A I do have a copy of his member work history, yes. 7 Q I am going to show you -- 8 MR. GORMLEY: May I approach, your Honor? 9 THE COURT: Go ahead. 10 Q I want to make sure we are looking at the same 11 documents, so I don't confuse the document or you or me? 12 A That is not actually what I am looking at now; but 13 I believe, I also have that document. Let me take a quick 14 peek. I think it's this document -- actually, let me see. 15 Q I think it's this one, correct? 16 A Okay. 17 Q Yours is the one that you based your calculations 18 on if I'm not mistaken, this is the one in your file, and 19 that is the one you based these calculations on, correct? 20 A Which calculations? 21 Q Well, for the pension benefits or? 22 A I relied upon this particular document to establish 23 that at the time of his injury, Mr. Nichilo had accumulated 24 or accrued 16 credits towards the pension; that is 25 specifically what I used this document for. KCJ Kucsma Cross/Gormley 510 1 Q And this document also contains his year over year 2 hours; correct? 3 A It does, yes. 4 Q And that's in 14; correct? 5 A Yes, this is dated November -- it was run November 6 1, 2014; that's correct. 7 Q May I look at this one moment? 8 A Sure. 9 Q Okay. Thank you. 10 I believe we are looking at the same document. The 11 document I have, actually, I will give you the one have. I 12 was looking at -- this is the subpoenaed record. 13 A Yeah, the date that you're referring to is simply 14 the run date, it's simply, when they actually printed this 15 document. 16 Q Right; but the ones I handed you is from when? 17 A Which makes sense, it's dated April 19, 2017. 18 Q But you agree -- and I will agree -- your document, 19 other than date, the numbers are the same? 20 A I would definitely agree to that, yes. 21 Q Okay. Now, what year did Mr. Nichilo join the 22 union? 23 A I am just looking at my report, as well, and 24 according to all the information that I reviewed, Mr. Nichilo 25 had been a member of Local 79 starting in 1993. KCJ Kucsma Cross/Gormley 511 1 Q Okay. Let me stop you there for a second. 2 In 1993, how many hours did he work in the union? 3 A Very specifically, again, based on my total review, 4 he was a member of Local 79 in 1993; also from '98 to 2002 -- 5 Q I don't mean to cut you off, but '93, how many 6 hours -- that's the question -- how many hours did he work? 7 Isn't it true he worked 13 hours in the union in 8 1993? 9 A Yes, according to this document. 10 Q Look at the same document. 11 He didn't work in the union '94, '95, '96 or '97; 12 is that correct? 13 A According to the information that I reviewed, he 14 was not -- that is correct, he was not actually doing any 15 sort of union employment until he started doing union 16 employment again from 1998 to 2002, he then stopped union 17 employment again, and rejoined the union in 2009. 18 Q Okay. So '98, from this document, he worked 35 19 hours in '98 in the union, correct? Yes or no? 20 A Uhm, according to this document, I see a total of 21 59 hours reported for 1998. 22 THE COURT: You can approach. Go ahead. 23 A There are two line items for '98; you have to add 24 them together. 25 Q I see that now; okay, so it as 59 hours; I see KCJ Kucsma Cross/Gormley 512 1 that; two entries? 2 A Yes. 3 Q 1999, worked 145 hours, correct; union hours? 4 A That is correct, yes. 5 Q 2000, he worked 982 union hours, correct? 6 A Technically, 982.5, but yes, that's correct. 7 Q Fair enough; 982.5? 8 A Yes. 9 Q And that is the first year he earned pension 10 credits; is that correct? 11 A That is correct. That's the first year in which he 12 was vested; you have to vest. So he had to be a member of 13 the union for ex-number of years before he would start, yes, 14 accumulating these credits; yes, he got one credit. 15 Q I will combine them; but 2001 and 2002, he worked 16 450 hours for the union and 741 in the union, respectively. 17 So, for 2001, 2002; is that correct? 18 A Yes. 19 Q Okay. Just to move it along. 20 Then he's not working in the union again 2003? 21 A That's correct? 22 Q '04, '05, '06, '07; correct? 23 A Correct; he rejoins the union in 2009. 24 Q And so he's out in '08? 25 A Yes. KCJ Kucsma Cross/Gormley 513 1 Q Now, you mentioned earlier -- we will get into it 2 in few minutes -- you mentioned that -- well, let me ask you 3 this: By 2007, he's got 1.3 years of credited service, 4 correct? 5 A By 2007, it looks as if -- technically, by 2007, 6 according to this document, he had 2.7 years of vesting. 7 Q Correct. 8 A And it looks like he had 13 credits of what they 9 call benefit services, in the final -- the last column there. 10 Q Right. 2007 though, he lost all of vested credits, 11 correct, correct? 12 Actually, I take that back. Let me rephrase that. 13 At some point in time, he lost all those 13 credits 14 that he had earned? 15 A There is a deduction in 2007, that's correct, for 16 any time accumulated before then, yes. 17 Q Okay. And he lost those credits, I guess -- I 18 shouldn't guess -- he lost those credits because he didn't 19 have enough time year over year to maintain those credits; at 20 some point in time, he lost them? 21 A That's correct, he had not been working in the 22 union for a period time; so all of those credits were lost, 23 yes. 24 Q And just going forward he now -- this has different 25 years going '09, '10, '11 and '12, right, he works in the KCJ Kucsma Cross/Gormley 514 1 union part or a portion of each year? 2 A That's correct; and during that time period, he 3 accumulated 16 credits that I used in my calculations. 4 Q But at some point in time; going forward, at some 5 point in time, he is going to lose those 16 credits because 6 he is not working, correct? 7 A Not at all. I don't see any indication that he is 8 going to lose -- 9 Q Not on the document; I said at some point in time 10 since he is no longer in the union, he is going to lose those 11 credits? 12 A You mean now because he's injured and not working 13 in union, most likely, yes. 14 Q All right. Now, do you have his Mason Tenders 15 personal statement of contributions? 16 A Let me see. 17 Q In fact, if you give me back the document that I 18 gave you, I will find it for you to speed things up. 19 A Alrighty. 20 MR. CANNAVO: Judge, at some point we will mark 21 these all as exhibits. 22 THE COURT: We will put everything in. 23 MR. CANNAVO: It would be easier. Judge, I 24 think Ms. Kucsma can leave her folder and we can combine 25 those documents and have them. KCJ Kucsma Cross/Gormley 515 1 THE WITNESS: Sure. 2 Q You do have his personal statement of 3 contributions, correct, a three-page document? 4 A I don't know that I brought that with me, but I 5 certainly reviewed this. 6 THE COURT: Show Counsel, because if the 7 witness hasn't seen it -- just show him. 8 MR. CANNAVO: Judge, I am okay with whatever he 9 has; I've seen them. 10 MR. GORMLEY: It's in the subpoenaed records. 11 MR. CANNAVO: I seen them; Judge. 12 MR. GORMLEY: This was taken from the 13 subpoenaed records. I just need to find the -- oh, here 14 it is. 15 MR. CANNAVO: Judge, I have no problem if 16 counsel uses his to make it easier. 17 MR. GORMLEY: Well, I have writing all over 18 his. 19 MR. CANNAVO: She only looks at numbers. 20 THE WITNESS: My brain goes to the numbers, 21 that's right. 22 Q All right; 2009 according to the first document, he 23 worked 1,050 hours; correct? 24 A That is correct, yes. 25 Q What employer was he working for? KCJ Kucsma Cross/Gormley 516 1 A Let' see; it looks like in 2009 all of his 2 employment was through either -- let's see, Whitestone 3 Construction and there is another employer -- no, I think 4 that was it for 2009. Looks like the only employer listed 5 here is Whitestone Construction. 6 Q Okay. And just to -- 7 MR. GORMLEY: May I approach, your Honor? 8 THE COURT: Yes. 9 Q I want to make sure; on your earnings history -- do 10 you have a copy of this? 11 A I do. 12 Q That way I can just point to this? 13 A Sure. 14 Q That is the 43,774 he earned in 2009; correct? 15 A That is correct. 16 Q That is equivalent rent to 1,050 hours, give or 17 take? 18 A That's correct. 19 Q Because his union wage was give or take $36, $37, 20 $38 hour? 21 A Well, I can't agree or disagree with that. What I 22 can tell you is we have a union documents that clearly 23 indicates that he worked 1,050 in 2009, and I have a W-2 from 24 Whitestone Construction that clearly indicates that he earned 25 $43,774, whether that was. KCJ Kucsma Cross/Gormley 517 1 Q We will agree, then, that they correlate; he earned 2 $43,000 in union wages in 2009? 3 A That's correct; for the second half of 2009, 4 correct. 5 Q Okay. 2010, going back to the personal statement 6 of contributions, how many hours, union hours, did he work in 7 2010? 8 A 523. 9 Q Okay. You have 523 hours, that is right here, 523 10 hours? 11 A It is, yes. 12 Q But you have union earnings of $42,757 for 2010? 13 A That is correct, yes. 14 Q But is that correct? 15 A Uhm -- 16 Q Because if -- basically, in 2009 he works 1,000 17 hours and earns $44,000; right? 18 A That is correct. 19 Q But he works half the hours in 2010 and earns 20 almost the exact same amount of money? 21 A Well, what I can tell you is, if we look at this 22 pension document here, he had two employers in 2010; 23 Whitestone Construction and Hunter Roberts Construction. I 24 have two W-2s; one, from Whitestone Construction, and one 25 from Hunter Roberts Construction. If I add the amounts on KCJ Kucsma Cross/Gormley 518 1 those two W-2s together, I get a figure of $42,757. 2 Q But he only worked 543 hours. In fact, he only 3 worked 138 hours for Whitestone construction, according to 4 the personal statement of contributions; isn't that correct? 5 A That is what this statement says, that's correct, 6 yes. 7 Q So in other words, while he was actually working 8 for Whitestone Construction, he worked for -- in June of 2010 9 for the union wage, apparently, he didn't work for Whitestone 10 Construction on union jobs in 2010 throughout that entire 11 year. He only worked in January according to this document. 12 A All I can tell you is what I just stated, and that 13 is, he two employers in 2010; he worked a total of 523 hours 14 towards his pension and did earn, according to his W-2s from 15 these two employers, about $42,000 that year. 16 Q His W-2 from Whitestone Construction is for 17 $28,566; is it not? 18 A Yes, it is. 19 Q He made $28,568 for working 138 hours? 20 A He clearly earned $28,566; that is what his W-2 21 says; he clearly did, in fact, earn that in that year. 22 Q Right, but I am only worried about union. He 23 couldn't possibly have worked 138 hours in the union for 24 Whitestone Construction in June -- I'm sorry, in January of 25 2010 for one month, and at the same time, earn $28,000; KCJ Kucsma Cross/Gormley 519 1 that's $28,000 in one month; correct? 2 A Again, all I can tell you is what the documents 3 tell me. 4 Q Well, I'm asking you, is that number incorrect that 5 he earned $42,757 in union wages in 2010? 6 A No, that number is exactly equal to the sum of one 7 W-2 that has an amount of $28,566 and another W-2 that has an 8 amount of $14,191. 9 Q I'm not disputing that he earned $42,757, Ms. 10 Kucsma, I'm saying that all that money is not union? 11 A And again, my answer really would be simply the 12 same; all I can tell you is he clearly worked through the 13 union for these two employers in 2010; that's clear from the 14 pension documents and I have a W-2 from each of those 15 employers, when I add them together, I get the figure that we 16 are talking about. 17 Q Right. So, basically from that, you're gathering 18 that -- and I assume you're concluding that, based on his 19 personal statement of contributions, which was two employers, 20 one, which is Whitestone, he earned $28,000 in 2010 from 21 Whitestone, but he must have done that in one month based on 22 working 138 hours? 23 A Again, all I can tell you -- 24 Q So that's what you're tell us; that's what you're 25 telling the jury, that in 138 hours, he earned $28,000? KCJ Kucsma Cross/Gormley 520 1 A I'm simply telling you, I'm agreeing you with in 2 terms of how these hours were reported, beyond that I 3 couldn't comment one way or another. He definitely earned 4 that money, working for Whitestone and he definitely worked 5 for Whitestone through the union; that is what he can tell 6 from these documents. 7 Q Right; but not for the whole year? 8 A Again, I can't comment on anything other than the 9 information reported in these documents; specifically, how 10 they were reported by the union, I simply couldn't say. 11 Q Okay. But 138 hours, you would agree with me, if 12 this says he only worked 138 hours for Whitestone in 2010, 13 it's not possible for him to make $28,000 for working 138 14 hours over the course of one month in January of 2010; you do 15 agree with me? 16 A Really, the only thing I can say is what I have 17 said before, it's simply -- 18 Q All I am asking is, do you agree with me, he 19 couldn't -- yes or no -- could he have earned $28,000 for 138 20 hours? 21 MR. CANNAVO: Judge, this has been asked five 22 times; asked and answered. 23 THE COURT: Counsel is entitled to ask a 24 yes-or-no question. If you feel it doesn't lend itself 25 to a yes or no answer, you say, I can't answer that yes KCJ Kucsma Cross/Gormley 521 1 are no. 2 A I don't think I can answer that question yes or no 3 without explaining, so. 4 Q Now, in 2010 he works 523 total hours in the union, 5 correct? 6 A Yes. There are 523 hours, yes, reported on the 7 pension document, that is correct. 8 Q And I'm referring to the personal statement of 9 contributions? 10 A That is the pension document, I think, we are both 11 talking about. 12 Q Yes. 13 A That's correct. 14 Q He worked in January, February, and March, correct? 15 And then in April, he works two hours for Hunter Roberts, and 16 in July, he works eight hours for Hunter Roberts; and that is 17 the extent, starting in July of 2010, of his entire union 18 wage, correct? 19 A That is the information reported on this annuity 20 statement, that is correct, yes. 21 Q And you don't doubt the information -- in fact, you 22 based all of this on the annuity statement, did you not? I 23 mean, in part, your calculations are based on the hours and 24 using these documents, correct? 25 A That is certainly one the documents I relied upon, KCJ Kucsma Cross/Gormley 522 1 yes. 2 Q And these documents are actually consistent with 3 the pension history document, that sets forth from '93 all 4 the way to 2012, the number of hours he worked, they are 5 consistent with one another, they are certainly not 6 inconsistent; right? 7 A I believe they are consistent with one another, 8 yes. 9 Q Okay. So, other than working eight hours -- 10 looking at the document -- other than working eight hours in 11 July of 2010, from April 2010, for an entire year to 12 April 2011, he didn't work in the union; is that correct, yes 13 or no? 14 A From April of 2010, did you just say? 15 Q Yes; to April of 2011, other than eight hours in 16 July, he didn't work in the union? 17 A I don't see any annuity contributions being made, 18 that's correct, from August of 2010 through April of 2011; 19 that is correct. 20 Q If you look at personal statement of contributions, 21 which I said is the same document you are looking at, there 22 is a year he didn't work in the union from April 2010 to 23 April 2011; would you agree with me, other than eight hours 24 in July? 25 A All I can say is, and what I can certainly tell you KCJ Kucsma Cross/Gormley 523 1 from the statement, there were annuity contributions made on 2 his behalf from August of '10 through about April of 2011; 3 that's correct. 4 Q And that's cause there is no union hours recorded; 5 is that correct? 6 A Specifically, again, this statement is very 7 specifically about contributions paid. 8 Q Why don't you use the personal statement of 9 contributions, which has the hours? 10 A Well, this does have hours but keep in mind the 11 union records hours various places for various purposes. We 12 are looking here at the annuity detail and it is correct, 13 that -- I don't see any contributions being made towards the 14 annuity, as I said, from August 2010 through April of 2011; 15 that's correct. 16 Q As far as you're aware, he didn't work during that 17 time period in the union, in the union? 18 A I am just looking at another document we have here. 19 We have another union document about the annuity 20 indicating he did receive contributions in 2010 and 2011; and 21 the significance of this other document we have, is that in 22 2009, he received annuity contributions in the amount of 23 $4,939, the function of the hours he worked. He also 24 received contributions towards his annuity in the amount of 25 $3,712.50 in 2010, and $3,632.75 in 2011. KCJ Kucsma Cross/Gormley 524 1 So this document indicates, of course, continued 2 regular employment. 3 Q Right. But, the personal statement of 4 contribution, I want you to look at that document, please. 5 This document here, personal statement of contributions, 6 which has a month by month breakdown of hours. 7 A Okay, I believe that is this one. 8 Q You see that? 9 A I do. 10 Q According to that document, which lists hours on a 11 monthly basis, he didn't work in the union from April of 2010 12 to April of 2011, with the exception of eight hours in July 13 2010; that is what this document shows; yes or no? 14 A This document does show no hours reported for the 15 pension, that's correct, July of 2010 through the end of the 16 year, yes. 17 Q All right. And 2011, we've got hours -- I am not 18 going to go through each month -- we got hours, would you 19 agree with me -- I'm sorry -- in April like we said, May, 20 June, July; not working in union again until November and 21 December. Would you agree with that, that's 2011? 22 A In 2011, that sounds about right, that's correct. 23 Q Okay. Well, it's not about right, it's what the 24 document says, right? I am not trying to be about right, I 25 am trying to say what the document says. KCJ Kucsma Cross/Gormley 525 1 A The document indicates he worked 754.5 hours in 2 2011. There are entries for April, May, June, July, and 3 November and December, yes. 4 Q Okay. So, there is no reported hours for August, 5 September, or October for union hours in 2011? 6 A I don't see any entries on this pension document, 7 that's correct. 8 Q And you don't see any for January, February or 9 March either, correct? 10 A On this document, that's correct. 11 Q Again, a document that you relied on at least, in 12 part, in coming to these conclusions, correct? 13 A Well, keep in mind, you are absolutely right that 14 replied upon this document for purposes of calculating hours 15 and pension benefits, keep in mind, I specifically used these 16 hours, so to the extent that he only worked several months 17 out of one year, that is all I used when I ultimately 18 calculated his pension benefits, and on average what he 19 worked -- would have worked continuing forward. 20 Q Would you agree with me that what I've described 21 for 2008, '09, '10, '11 -- and I will -- I don't have to get 22 into '12, but '11; that's not continuous union work, year in 23 and year out. He is in the union, but not continuous; would 24 you agree with me? He's working non-union work? 25 A I actually wouldn't agree with you at all. What I KCJ Kucsma Cross/Gormley 526 1 mean by that is these documents clearly demonstrate he was in 2 the union. He clearly was working union jobs. He was being 3 paid for the union jobs. He was being given credit for the 4 annuity contributions. He was being given credit towards the 5 pension. That's the information I used. I didn't add extra 6 hours in when I started calculating his pension. Whatever he 7 had been given credit for on these documents is what I in 8 fact used. So to the extent that he worked only 523 hours or 9 was credited with only 523 hours of work in 2010, that's the 10 number I used, I didn't gross up that number. 11 Q You didn't suggest that you did. 12 Let me ask you this: We got 2010, he worked 523 13 hours. If you assume he worked a 40-hour week, four weeks of 14 the month, that's 160 hours; 160 hours there, you know, he 15 basically worked three and a half months of the year in 2010; 16 would you agree with me? 17 A My understanding is that in this case, Mr. Nichilo 18 was furloughed which is very common in these types of unions. 19 So the previous year, he had worked only about half the year. 20 He had worked in excess of 1,000 hours, which means he was on 21 track to work in excess of 2000 hours. 22 It is not at all unusual for unions to do what we 23 call furlough union members. The idea about furloughing 24 unions is kind of to share the wealth. So if somebody had an 25 extraordinarily good year the year before and worked a lot of KCJ Kucsma Cross/Gormley 527 1 hours, they very often are -- for lack of any better 2 phrase -- kind of taken off the list for awhile to give 3 someone else a chance to work. And my understanding is that 4 in 2010, Mr. Nichilo was furloughed. And I certainly 5 assumed, going forward, he would be furloughed every several 6 years, which is why I made sure I built it into my analysis. 7 Q So he worked 523. Let's to go to '11, he worked 8 754. If you take the same assumptions 40 hours a week, four 9 weeks a month, he worked five months out of an entire year. 10 So he's furloughed -- actually, we you agree with me on that, 11 he worked about five months out of the year, and he was 12 furloughed the rest. I will acknowledge your answer, he 13 furloughed the rest? 14 A Again, in 2011, certainly he only worked 754; 15 hours. He also only earned $28,694, and I used that, that's 16 part of my calculations, again, to take into account 17 basically, that Mr. Nichilo's pattern of employment going 18 forward would have mirrored what it was in the past. He 19 would have had a very good year, like he was on track to have 20 in 2009. He would have been furloughed in one or two years 21 and had low years, like he had in 2010 and 2011, and he would 22 have had modest years like he was on track to have in 2012. 23 So keep in mind, even though he had earned, or was 24 on track to earn $84,000 in 2009, I only used as my starting 25 point, an average of $49,000, which is consistent, actually, KCJ Kucsma Cross/Gormley 528 1 with benchmark statistical data for what construction 2 laborers in this area earn on a yearly basis. 3 Q Just so we're clear, when you are furloughed, they 4 are not paying you, right? 5 A That's correct. 6 Q Okay. Drawing your attention to Page 3 on yours? 7 A Sure. 8 Q You got 12 percent fringe benefits? 9 A Yes. 10 Q That's an add back in on your earnings adjustment, 11 correct? 12 A Yes, I added that on top of his earnings, correct. 13 Q Now, that is annuity? 14 A It is only the annuity, yes. 15 Q It is only the annuity? 16 A Yes. 17 Q So no other fringes were added in? 18 A That's correct. 19 Q All right; I just want to be clear on that. 20 A Sure. 21 Q Excuse me one second, I want to find the page, so I 22 refer to it quickly. 23 Turn your attention to Page 8. Now, we are talking 24 pension benefits, correct? 25 A Yes. KCJ Kucsma Cross/Gormley 529 1 Q And you explained the formula, pension credits, 2 number accumulated over your life? 3 A Yes. 4 Q In the union? 5 A Correct. 6 Q So if you're not in the union, you're not getting 7 pension benefits if you work for a non-union shop; is that 8 correct? 9 A That's correct. 10 Q By the way, non-union shops generally, are the 11 benefits better or worse than the union. 12 A It depends; and I also should say, that it's not 13 unusual to see some non-union shops will make concessions to 14 some union benefits. 15 So in order to compete, it is not unusual to see 16 some non-union shops agree to also cover union benefits, even 17 though they are not required to do so. 18 Q But some shops, you don't get the union benefits; 19 would you agree with that? 20 A That is correct. 21 Q And you agree with me, some union shops, the hourly 22 wage is not as attractive as the Local 79 union wage? 23 A Certainly, yeah; there certainly are some non-union 24 shops that have lower wages, there actually are some that 25 have higher wages, so it does depend. KCJ Kucsma Cross/Gormley 530 1 Q It depends; but there is at least some that are 2 less? I mean -- 3 A Yes. 4 Q If Mr. Nichilo is working for ABC company, it's 5 possible -- and they are a non-union shop -- it is possible, 6 is it not, that he could be earning less on a per hour basis, 7 for non-union work; would you agree with me? 8 A Sure, it's possible. 9 Q Would you agree with me also, that he's working for 10 a non-union shop, he's not getting the same benefits as he 11 gets from 79; would you agree with me on that? 12 A I wouldn't necessarily agree with you, but it's 13 certainly possible, sure. 14 Q Now, the way you basically came to the pension 15 benefits, you set out formula, which is relatively easy to 16 understand. You got accumulated number of pension credits. 17 You get benefit rate; and that's your monthly pension benefit 18 once you retire, correct? 19 A Yes, that's correct. 20 Q And you are assuming that Mr. Nichilo was going to 21 retire in 2037, from a statistical standpoint -- not -- I 22 shouldn't say you're assuming, but you're using his 23 statistical work life expectancy in these documents? 24 A Yes. 25 Q Would you agree with me? KCJ Kucsma Cross/Gormley 531 1 A Yes. 2 Q Okay. In order to come up with the number of 3 pension credits -- actually, withdrawn. 4 The pension credits are tied directly to the number 5 of hours you work each year, correct? 6 A Certainly pension benefits are a function among 7 other things, yes, number of hours worked. 8 Q Ever 150 hours you work you get 1 credit? 9 A That's correct. 10 Q In 79. So you work 300 hours, you get two credits; 11 450 hours, you get three credits, and on and on and on; 12 correct? 13 A That's correct; up to a maximum of ten credits. 14 Q Up to a maximum of 10? 15 A Yes. 16 Q Okay. So basically, once you hit 1500 hours, you 17 are not earning any more pension credits. If you work 1600 18 hours, you've maxed out? 19 A That's correct. 20 Q You used yearly hours of is 1,114.2 hours? 21 A Technically, for purposes of determining the number 22 of pension credits he would accumulate, I used the figure of 23 835.3 hours. 24 Q Well, you started with the yearly hours and then 25 you reduced it to 835? KCJ Kucsma Cross/Gormley 532 1 A Yes, that's correct. 2 Q But your starting point is 11 -- I'm sorry -- 3 1,114.2; that's your starting point? 4 A Yes. 5 Q But when you go back and you look at his -- let me 6 find the record -- when you go back and look at his pension 7 work history, the one-page document which lists from '93 to 8 2012, there is not a single year in the union that he had 9 yearly hours of 1,114; would you agree with me, he never 10 reached that pinnacle? 11 A He got very close during the six months in 2009. 12 Q Right. 13 A But let me just take a quick peek at that, I think 14 you are correct, that there was no total in the amount of 15 1,114, that's correct. 16 Q I mean, we don't have to go through all these 17 because I think we have already, but you know, he's only got 18 two years where he came even close to 1,000; from '93 to 19 2012, would you agree with me? 20 A Well, keep in mind, he was not in the union for 21 many of those years. Having said that, though -- let me just 22 quickly review this -- the relevant figure for me, or for 23 purposes of this conversation, is the 835 hours figure, 24 because that is what the plugged into the pension formula. 25 The union, of course, would take the figure from this KCJ Kucsma Cross/Gormley 533 1 document we are discussing, they would take those figures, 2 and plug them into the pension formula, and there is a year 3 here where he had accrued 982.5 hours towards the pension. 4 Q You got a 741, you got 754, and you got 523; but 5 everything else, every other year that he worked in the 6 union, it was less than 523; would you agree with me, yes or 7 no? 8 A No, I definitely would not agree with that, because 9 he obviously worked 1,050 hours -- 10 Q No, I said other than the years 1,050, 982, 741, 11 and 523 -- and if I hadn't said it already -- 754. Every 12 other year that he worked in the union, in the union, he 13 wasn't even -- he was barely over 500; he was below 500 14 actually? 15 A I believe that's correct, yes. 16 Q All right. And he's got 11 years in the union; 11 17 years in which he worked at least one hour in the union from 18 '93 all the way to '12, right? 19 A Let me just take a quick peek here again. I 20 believe that's correct, but let's see. 21 Let see, according to my information he was in the 22 union in '93, then from '98 to 2002 and then again from 2009 23 until he was injured. 24 Q So that's the same number that I think I mentioned 25 if you add them all up. KCJ Kucsma Cross/Gormley 534 1 Let's just move onto the benefit rate. The benefit 2 rate you have as listed as 12.50. So whatever number of 3 pension credits he accumulated over his career, you are going 4 to -- if he was retiring today, it's 12.50; correct? 5 A Yes, that's correct. 6 Q And basically, if he's got ten pension credits -- 7 to make it super easy -- ten pension credits times 12.50, 8 that's $125. That's basically what his pension would be in 9 that scenario. I appreciate that is not today's scenario, 10 but that's basically how it's done; correct? 11 A Yes, that's correct. 12 Q Okay. And you project a yearly increase, year over 13 year, from 2017 to 2037 of 3.8 percent? 14 A Yes. 15 Q In other words, the $12.50, you believe, is going 16 to grow by 3.8 percent in 2018, '19, '20; all the way up to 17 '37; that's your assumption? 18 A Not technically. The only reason I say that is 19 that, typically when these pension benefit rates are 20 increased, it is not unusual for them to remain flat for 21 several years, and then be increased significantly four years 22 later and then flat for a couple years, then increased by 23 10/15 percent. 24 Certainly, I have in this case, for purposes of 25 calculations, I assumed on average the rate would increase KCJ Kucsma Cross/Gormley 535 1 3.8 percent each year, but what I would expect to see more 2 likely, would be no increase for three or four years, 3 10/12/15 percent, no increase 3, 4, 5, years; that is 4 typically how these rates are increased. 5 Q Got you. Every 2, 3, 4 years? 6 A Sometimes more, sometimes less; it really depends 7 on the underlying economic conditions, the union, and so on. 8 Q How long has it been 12.50? 9 A That I don't recall off the top of my head. 10 Q 2004, 13 years, it's been 12.50? 11 A That may be correct, I don't recall specifically 12 when it -- 13 Q It's actually, I believe -- I'll check, hold on. 14 THE COURT: Counsel, are you looking at 15 something we agreed will come into evidence, that we've 16 used? 17 MR. GORMLEY: Yes, yes, it's this, but give me 18 one second. 19 THE COURT: There is no objection. 20 MR. CANNAVO: No. 21 MR. GORMLEY: I'm just trying to see. 22 Q Yes, it's 2004, I believe from your report or 23 your -- what they call 3101(d) your disclosure. 24 But let me ask you this: From '94 to 2004, before 25 it basically got frozen at 12.50 and hasn't grown since. How KCJ Kucsma Cross/Gormley 536 1 much did it grow from '94 to 2004, a ten-year period? 2 A On average 2.5 percent per year. 3 Q Right; but it hasn't grown since? 4 A Again, from 1994 to 2004, it wasn't increased each 5 year, it was increased once or twice during that period for 6 an annual increase of 3.5 percent. So it doesn't surprise me 7 at all to see that the rate has not increased, particularly, 8 when you factor in the most recent recession. 9 Q But it has not increased, you agree, it hasn't 10 increased since 2004 -- 11 MR. CANNAVO: Judge, this asked and answered. 12 Q -- for 13 years; is that correct? 13 THE COURT: Asked and answered. You don't have 14 to answer. Let's move on, Counsel. 15 MR. CANNAVO: Okay. 16 Q Health insurance; you mentioned about health 17 insurance? 18 A Yes. 19 Q You're projecting a growth of $646,979, that Mr. 20 Nichilo is going to lose because the cost -- basically, 21 because he no longer has health insurance through the union? 22 A The value of the family coverage that he was 23 receiving through the union is $646,979, yes. 24 Q But you are aware that he is also covered under his 25 wife's plan at the present time because she works full-time KCJ Kucsma Cross/Gormley 537 1 at Staten Island University Hospital; are you aware of that? 2 MR. CANNAVO: Objection; that doesn't replace 3 his loss. 4 THE COURT: Let's move on. This is something 5 you have to figure out. At this point, you can work on 6 what this witness has talked about. We will hear 7 something more through your economist. 8 MR. CANNAVO: I would just like to note my 9 exception. 10 THE COURT: You have an exception. I 11 understand we don't have any other numbers on any other 12 people. Go ahead. Move on. I respect your position. I 13 may have to think about it a little bit, but let's deal 14 with what we have here. 15 MR. CANNAVO: That's fine. 16 Q Your numbers, all of your gross numbers that you 17 have written down in there, they all assume one thing though, 18 he doesn't go back to work at all, correct? 19 A That is correct. I have assumed that, yes. 20 Q Okay. So, if -- if he goes back to work in some 21 capacity and earns some money, somehow, some way, between now 22 and 2037, your numbers get reduced; correct? 23 A My numbers wouldn't change, and the reason I say 24 that is because these figures reflect very specifically what 25 Mr. Nichilo would have earned in terms of total compensation KCJ Kucsma Cross/Gormley 538 1 if he had been able to continue in his employment, the 2 employment that he had at the time he was injured. 3 Certainly, to the extent, I suppose if he earned 4 some other money, it's correct, that I would probably 5 substract those from my numbers. 6 Q You would have to subtract. 7 So, if he earned -- pick a number, if he earns 8 $5,000, it goes down as $5,000 a year, on wages and benefits? 9 Assume we can replace all the wages and all the benefits, if 10 he makes $5,000 a year, your number drops by $5,000; would 11 you agree? 12 A Certainly, if the jury felt Mr. Nichilo could do 13 something to earn some money, then, yes, they can adjust my 14 figures downward to reflect that. 15 MR. GORMLEY: Okay, all right; thank you very 16 much. 17 THE WITNESS: Thank you. 18 MR. CANNAVO: I'll be quick, promise; but then 19 again, if I ask one question, she might go. 20 REDIRECT EXAMINATION 21 BY MR. CANNAVO: 22 Q Why did you use that number 1,114.2, the number of 23 hours? 24 A The number of hours, the 1,114.2, was the average 25 of what Mr. Nichilo had, in fact, worked. I should say, the KCJ Kucsma Redirect/Cannavo 539 1 number of hours, he in fact, worked if the full years 2010 2 and '11, and what he was on track to work for 2009 and 2012. 3 In other words, what he would have worked, if he worked a 4 full year of union employment in '09 and '12. 5 Q And the number of hours that they work, is that 6 reflective of the construction industry and the economy, in 7 general? 8 A Yes. 9 Q When the construction industry and the economy get 10 better, they will work more? 11 A Yes, that is correct. 12 Q And similarly, the union demands for increased 13 wages and benefits will change, as well? 14 A Yes, absolutely. 15 Q When counsel asked you about the $12.50 benefit 16 rate, in your opinion, is that going to stay that way for 17 long? 18 MR. GORMLEY: Objection. 19 THE COURT: I will allow it. 20 Q Based on your projections, is that going to stay? 21 A Not at all. As I indicated before, it certainly 22 remained constant from 2004 going forward. It is at not 23 usual to see those benefit rates remain constant for a number 24 years; obviously, four years after that starting point, 2004, 25 we ended up in the midst of a very severe recession. I KCJ Kucsma Redirect/Cannavo 540 1 certainly would not expect to see the benefit rates increase 2 during that recession. Now, particularly, over the last 3 several years, earnings in the construction industry have 4 steadily increased and increased by a greater amount year 5 over year. That is going to, in my professional opinion, 6 result in a much stronger contract, the next time there is 7 some sort of negotiation and collective bargaining agreement. 8 Q With regard to the retirement age in 2037, his 9 father's working at present at 63 years of age? 10 MR. GORMLEY: Objection, your Honor. 11 THE COURT: It's beyond the scope. 12 Q That is the average statistical -- 13 MR. GORMLEY: Objection, your Honor. There is 14 no evidence of that whatsoever. 15 THE COURT: No, no, I thought the witness 16 talked about a table that she worked with. 17 MR. GORMLEY: He is asking about -- he is 18 asking about his father. 19 MR. CANNAVO: No, I am not, I am not asking the 20 father now. 21 THE COURT: Let's go back to the statistics you 22 that used. 23 Q The age that you gave of retirement at 63, is based 24 on statistical averages? 25 A Yes, that's correct. KCJ Kucsma Redirect/Cannavo 541 1 Q And there is nothing to say that he won't work 2 longer. 3 A There are many people in what we call the upper end 4 of the distribution, that work well beyond the average, 5 that's correct. 6 Q And you are also not assuming that he would get a 7 promotion to steward or foreman; is that correct? 8 MR. GORMLEY: Objection. 9 THE COURT: This is beyond the scope. 10 Q Okay. Well, Ma'am, the reason I'm asking you that 11 is when counsel asked you about that year 2009/2010, remember 12 those two years? 13 A I do. 14 Q First of all, the fact that you're working for the 15 union and making union wages, that does not prevent you from 16 working another job, someplace else, not within the union? 17 A That's correct, sure. 18 Q Right; and the fact that he's only working 1,000 19 hours in a year or 500 hours in a year, he can go work some 20 place else? 21 A Yes, he could have. 22 Q All right. And when counsel asked you about the 23 number of hours listed for 2010, and asked you if he was 24 making $27,000 for 138 hours of work, that comes out to how 25 much an hour about? KCJ Kucsma Redirect/Cannavo 542 1 A So, 27,000 for -- 2 Q 138 hours? 3 A So about -- what do -- we have about $200 an hour, 4 yes. 5 Q How much does a union foreman make? 6 THE COURT: All right, sustained. 7 MR. GORMLEY: Objection. 8 THE COURT: It's sustained. 9 MR. CANNAVO: Well -- 10 THE COURT: We don't have any basis for, it's 11 beyond the scope. Let's move on, counsel? 12 MR. CANNAVO: We do have a basis, Judge. 13 Q Was Mr. Nichilo working as a union foreman at that 14 job, for that period of time? 15 MR. GORMLEY: Objection; I don't think there is 16 evidence -- I am objecting to the word foreman. 17 THE COURT: There is no -- the witness said -- 18 well, she has no documents that says here's what he was 19 doing, here's the salary, and where he worked, you know. 20 MR. CANNAVO: Well, well -- 21 THE COURT: I guess he maybe could have worked 22 150 hours a week and he could have gotten triple time on 23 Saturday; there is no basis for that, there is no 24 evidence here. You can ask the witness if she has any 25 evidence. KCJ Kucsma Redirect/Cannavo 543 1 Q Do you have any evidence as to what a foreman would 2 earn in 2010? 3 THE COURT: Sustained; that doesn't relate to 4 this particular Plaintiff. 5 MR. CANNAVO: All right, Judge, may I reserve 6 the right to recall Mr. Nichilo to ask him if he was 7 working as foreman and what he was making in 2010. 8 THE COURT: He was deposed twice. He's been on 9 the stand. You can reserve the right, but my inclination 10 is -- 11 MR. GORMLEY: We will object. 12 THE COURT: -- probably not. 13 MR. CANNAVO: Okay. All right, then, I have no 14 other questions. Thank you. 15 THE WITNESS: Thank you. 16 MR. GORMLEY: Very quickly, your Honor. 17 RECROSS-EXAMINATION 18 BY MR. GORMLEY: 19 Q The benefits rate for the pension that hasn't gone 20 anywhere since 2004 up until now is because, at least from 21 what you're saying, is in part because there's been a 22 recession in the collective bargaining agreements and were 23 basically set up during the recession; is that about a 24 summary of your testimony? 25 A Sort off. Again, it is not surprising to me KCJ Kucsma Recross/Gormley 544 1 because of the timing, to see that a benefit rate established 2 in 2004, has not subsequently been increased, because the 3 time when I would expect to see it increase, say four or five 4 years later, was when we were in the midst of recession. 5 Q When was the last collective bargaining agreement 6 for Local 79? 7 A I have a trade agreement here between Mason Tenders 8 District Council of Greater New York, and this is effective 9 on or after February 1, 2013. 10 Q Okay. So from 2004 to 2013, they didn't increase 11 the benefit rate; and then in 2013, it remained the same up 12 until the present time; correct? 13 A Well, again, keep in mind that a collective 14 bargaining agreement or wage and benefits schedule is dated 15 2013 through 2017, they were being negotiated ratified and 16 finalized and so on, prior to that. So right when we were 17 coming out the recession. 18 Q Right. In 2013, when that was done, said and done, 19 they -- the benefits didn't increase in 2013; you would agree 20 with me? 21 A No to my knowledge, that is correct. 22 Q And from now, 2017 to 2037, is it possible we are 23 going to have another recession within that 20-year period, I 24 mean, is it possible? 25 MR. CANNAVO: Judge, well outside the scope. KCJ Kucsma Recross/Gormley 545 1 THE COURT: I will allow it briefly. We heard 2 a fair reference to recession and prior recession. 3 A Sure, yeah. And actually, let me look back at my 4 report ever so quickly here, uhm, just to see what we were 5 discussing earlier. 6 Q I am just wondering if we are going to have 7 probably a recession between now and 2037. 8 A Well, I just want to point out to here that -- 9 MR. CANNAVO: Objection. 10 THE COURT: Maybe the question should be ask. 11 Did the witness account for that possibility in her 12 calculations. 13 MR. GORMLEY: That is fair enough. I will 14 adopt the question. 15 A Sure, it absolutely is, because as we discussed 16 earlier, from 1994 to 2004, the benefit rate increased by 3.5 17 percent each year. And we had a recession in 2000/2001, so 18 that period of 1994 to 2004 had a recession in it, as well, 19 and in spite of that, over that period on average, the rate 20 increased by 3.5 percent a year. 21 Q But it's increased by zero percent since 2004, year 22 over year, to the present, correct? 23 A That's correct; and that's because we had a 24 particularly severe recession and what made this recession 25 much different than the prior recession, as we all know, is KCJ Kucsma Recross/Gormley 546 1 of course, this recession was coupled with a very, very 2 significant downturn in the housing market and the 3 construction market. 4 What we have seen, though, is a very significant 5 rebound, particularly, in New York City and the five 6 boroughs, and you can easily see that by that looking at US 7 Department of Labor data, as a described before, and in fact, 8 wages in 2016 in the construction industry increased by over 9 three percent and are nearly back at pre recession levels, in 10 spite of the depth and severity of the crisis in the 11 construction industry. 12 Q But the benefit rate didn't change? 13 MR. CANNAVO: Objection. Objection, Judge. 14 This has been answered. 15 MR. GORMLEY: I have nothing further. 16 MR. CANNAVO: Nothing else from me. 17 THE COURT: What time should we -- are we 18 having a witness tomorrow? 19 MS. BLAIR: I have a motion. 20 THE COURT: Can I excuse the jury? 21 MS. BLAIR: Yes. 22 THE COURT: What time do we have the jury? 23 MR. CANNAVO: I may have a witness for, I 24 believe, for 10:30, Judge. I might be able to get him a 25 little sooner. KCJ Proceedings 547 1 THE COURT: Let's have the jury come in at 2 10:15, so you can start at 10:30. Or should we have them 3 come at 10 -- I hate to do that. 4 Okay. Come at 10:15, we will start at 10:30. 5 Thank you very much. 6 (Whereupon, the jurors exit the courtroom.) 7 (A brief recess is taken.) 8 THE COURT: All right. There is an email 9 that -- maybe we will put it in in a little bit; we have 10 to comprise on a couple of things. There was some issues 11 of Dr. Schatzer, who is a -- S-H-A-T-Z-E-R -- Matthew, he 12 is a physiatrist, we are okay on him. I think Defendants 13 still object to Dr. DeMarco. 14 MS. BLAIR: I do. 15 THE COURT: But I noted that earlier on, I had 16 in my notes that Mr. Cannavo said, I am going to get Dr. 17 Shiau or Mr. DeMarco if I can get them for tomorrow; 18 and so, we had that ahead of time, and he is going to 19 come in on Monday afternoon. 20 The one issue is Dr. Rombom, who is-- 21 MS. BLAIR: I take an exception to that. I 22 take an exception -- 23 MR. CANNAVO: Judge, as you know, he is a 24 descendent, or at least his name is, of the most famous 25 Rabbi in history, so we should hear him just for that KCJ Proceedings 548 1 reason. 2 THE COURT: I showed tremendous restraint here 3 when we heard the witness talk about a flood in 4 Pennsylvania; he didn't say it was that the Johnstown 5 flood, so -- you know, I didn't want to go back, I didn't 6 want to go back 500 years. 7 Let me just note one thing that we all talked 8 about, Hamer v. City of New York, it's 106 AD 3d 504; you 9 can bring in a treater without notice; but I went back to 10 the case, Dr. Gell treated the person, it was an issue 11 whether he was part of a team. Why can we not have him-- 12 MS. BLAIR: Because he's not -- 13 THE COURT: Hear me out -- why can't he come in 14 and say -- here's what I say, here's how the office 15 works, here's the meetings I went to, and everything 16 else. We put his records in and we can put the records 17 in of Selig, Ghamar, and Behavioral Medicine Associates, 18 and he can read them, but he can't go beyond them. 19 MS. BLAIR: If you want to limit him to the one 20 record that he co-signed, that's fine. 21 THE COURT: But he can talk about -- 22 MR. CANNAVO: He is not going to speak outside 23 the records. He is going to offer his opinions based on 24 what is in the records and that is it. 25 THE COURT: He may not be able to go really KCJ Proceedings 549 1 beyond reading from the record, maybe explaining a team, 2 explaining how the team works, explaining his role. 3 When I walked in this morning, I said can you 4 get Selig or Ghamar. We can try to limit it to that. 5 MS. BLAIR: Judge -- 6 MR. CANNAVO: I can't get Ghamar, she's ill. 7 MS. BLAIR: Nichilo spoke to Ghamar; Rombom 8 wasn't in the room -- 9 MR. CANNAVO: It doesn't matter, Judge. 10 THE COURT: It's not in the records? 11 MR. CANNAVO: That's why doctors keep records, 12 that's why doctors keep records, so they can follow -- 13 MS. BLAIR: He can get the records in evidence 14 as the custodian. 15 MR. CANNAVO: He is not a custodian. 16 MS. BLAIR: He is a custodian. 17 THE COURT: For example, he cannot sit there 18 like -- let me take a psychiatrist, for example, he may 19 say well, the patient was depressed all the time and then 20 he got a promotion, and his health got better. I don't 21 know that he can talk about something that is not in the 22 record that is his reaction or his sense. He's going to 23 have to pretty much stick to the record. He may say, I 24 saw him once, and my sense of when I saw him confirmed 25 what I saw in the records. He can talk about the KCJ Proceedings 550 1 operation, the set up in his office -- 2 MR. CANNAVO: Judge, why can't you hear that 3 they are trying to preempt this guy without -- and they 4 are misrepresenting what his role is. 5 THE COURT: Let's -- wait, wait, we will have 6 an objection, we will have his records. 7 MS. BLAIR: I have the records; I have one 8 record with his name on it. 9 THE COURT: What is the record? 10 MS. BLAIR: He called -- 11 THE COURT: No, no. Where are the records 12 from? 13 MS. BLAIR: Behavioral Medicine Associates. 14 THE COURT: Let's see them. 15 MR. CANNAVO: Judge, he is the head of it; 16 nothing gets done there without his involvement. 17 THE COURT: I will take a look it. 18 MR. CANNAVO: No patient is seen without his 19 supervision and input, and that is how his operation is 20 done, Judge. 21 THE COURT: Let me ask you something, does he 22 review -- 23 MR. CANNAVO: Absolutely. 24 THE COURT: After somebody sees Dr. Selig, he 25 and Selig talk about the case? KCJ Proceedings 551 1 MR. CANNAVO: Judge, my understanding is they 2 have weekly reviews of every patient with which he is 3 involved; and that includes Mr. Nichilo. 4 I think your Honor has to hear this. I don't 5 care if you hear it with or without the jury present 6 until you let it go in; but I think your Honor will be 7 satisfied that this guy is the treating doctor; he is the 8 overall treating doctor. 9 MS. BLAIR: You need -- respectfully, Judge, he 10 is not -- 11 MR. CANNAVO: There is no surprise here, we 12 know who he is. 13 THE COURT: Ms. Blair admits he can certainly 14 come in to validate the reports. 15 MR. CANNAVO: To validate -- 16 THE COURT: It is going to be, like, he can 17 talk about what the records say, he can quote the 18 records -- let me go through them and see. I don't want 19 to go beyond what is in the record. 20 MS. BLAIR: Judge, I need my records because 21 they are subpoenaed, I assume they are subpoenaed. 22 THE COURT: You need them tonight? 23 MS. BLAIR: I have to prepare, yes; I will scan 24 them to you tonight, I will e-mail them to you tonight. 25 THE COURT: Okay. You will email them and do KCJ Proceedings 552 1 you have these records, yourself, Mr. Cannavo? 2 MR. CANNAVO: Judge -- 3 We can go off the record. 4 (Whereupon, a discussion is held off the 5 record.) 6 (Whereupon, the trial is adjourned.) 7 CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE ORIGINAL STENOGRAPHIC MINUTES TAKEN OF THIS PROCEEDING. 8 ________________________ 9 KELLY C. JENKINS Senior Court Reporter 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KCJ