1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 DAVID RAY, et al., 4 Plaintiffs, 5 JUDGE BOYKO -vs- CASE NO. 395119 6 7 KIM STEARNS, M.D., et al., 8 Defendants. 9 - - - - 10 Videotaped deposition of ROBERT B. ANCELL, Ph.D., 11 taken as if upon direct examination before Laura L. 12 Ware, a Notary Public within and for the State of 13 Ohio, at the offices of Linton & Hirshman, Hoyt 14 Block Building - Suite 300, 700 West St. Clair 15 Avenue, Cleveland, Ohio, at 10:28 a.m. on Monday, 16 April 23, 2001, pursuant to notice and/or 17 stipulations of counsel, on behalf of the Plaintiffs 18 in this cause. 19 20 - - - - 21 WARE REPORTING SERVICE 22 21860 CROSSBEAM LANE ROCKY RIVER, OH 44116 23 (216) 533-7606 FAX (440) 333-0745 24 25 2 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. Linton & Hirshman 3 Hoyt Block Building - Suite 300 700 West St. Clair Avenue 4 Cleveland, Ohio 44113 (216) 781-2811, 5 On behalf of the Plaintiffs; 6 Ronald M. Wilt, Esq. 7 Buckingham, Doolittle & Burroughs 1375 East Ninth Street - Suite 1700 8 Cleveland, Ohio 44114 (216) 621-5300, 9 On behalf of the Defendants. 10 ALSO PRESENT: 11 Scott Morrison, Videographer 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 W I T N E S S I N D E X 3 PAGE 4 DIRECT EXAMINATION 4 BY MR. HIRSHMAN 5 CROSS-EXAMINATION 36 6 BY MR. WILT 7 RE-DIRECT EXAMINATION 55 BY MR. HIRSHMAN 8 9 10 11 O B J E C T I O N I N D E X 12 OBJECTION BY PAGE LINE 13 MR. WILT: 25 18 MR. WILT: 29 16 14 MR. HIRSHMAN: 40 6 MR. HIRSHMAN: 54 3 15 MR. WILT: 56 7 MR. WILT: 56 14 16 17 18 19 20 21 22 23 24 25 4 1 ROBERT B. ANCELL, Ph.D., of lawful age, 2 called by the Plaintiffs for the purpose of direct 3 examination, as provided by the Rules of Civil 4 Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as follows: 6 DIRECT EXAMINATION OF ROBERT B. ANCELL, Ph.D. 7 BY MR. HIRSHMAN: 8 Q. Good morning. 9 A. Good morning. 10 Q. For the sake of the jury, I'll introduce myself, and 11 then we'll begin with the deposition. I'm Toby 12 Hirshman, and I represent Dave and Kelly Ray in this 13 matter that you're a witness in. 14 If we could, why don't we start by having you 15 identify yourself for the jury. 16 A. Yes, my name is Robert Ancell. 17 Q. Tell us a little bit about what you do for a 18 profession, if you would. 19 A. Yes, I'm a vocation rehabilitation counselor and 20 case manager, and I'm in private practice. I 21 evaluate and provide services to people who have 22 physical and/or psychological problems, and I have 23 to determine to what extent, if any, those problems 24 affect the person's ability to get a job, keep a 25 job, or be retrained for employment. 5 1 And where I'm asked and have the authorization, 2 I provide services, coordinate services, to try to 3 help people either keep their jobs, find new 4 employment, or be retrained for employment. 5 Q. So you actually are engaged in the process of 6 counseling people who have been injured in one way 7 or another in order to find them jobs and places to 8 fit into the labor market? 9 A. Right, to help them determine alternative 10 occupations, because the vast majority of them 11 cannot return back doing the kind of work they were 12 doing before. 13 Q. All right. And where do you do this from? 14 A. My offices are in Southfield, Michigan which is a 15 suburb of Detroit. 16 Q. I have a copy of your curriculum vitae in front of 17 me, or your resume. Would you tell us a little bit 18 about your educational background. 19 A. Yes, I earned a Bachelor's Degree from Wayne State 20 University with a major in psychology. I then went 21 on as a teaching fellow in the Department of 22 Psychology at the University of Detroit, and I 23 earned a Master's Degree in counseling with a minor 24 in industrial psychology. 25 Then after approximately 20 years, I went back 6 1 and I earned a Ph.D. in human services which -- from 2 Walden University in Minneapolis, Minnesota, which 3 is a research degree and has nothing to do with 4 clinical work. It's basically being able to do 5 independent research. 6 Q. So you are a Ph.D.? 7 A. Correct. 8 Q. I don't know if I referred to you as Dr. Ancell, but 9 you are a doctor? 10 A. Either way is fine, but, yeah, I earned a Ph.D., 11 that's correct. 12 Q. Okay. Which means that you are a doctor, but you're 13 not a medical doctor? 14 A. Correct, I am not a physician, I am not -- I am not 15 licensed to diagnose or treat individuals who have 16 medical problems. 17 Q. Okay. You are licensed within the discipline that 18 you practice, however? 19 A. Correct. I am a fully licensed counselor in 20 Michigan, and I'm also certified in my field of 21 vocational rehabilitation counseling. 22 Q. What does that mean, if you would tell us, to be 23 certified? 24 A. That means that I have taken and passed a written 25 examination, that I maintain a minimum of 20 hours a 7 1 year of education, and every five years I am 2 recertified by the accrediting organization based on 3 proving that I have achieved 100 hours of continuing 4 education. 5 Q. Do you belong to any professional organizations? 6 A. I do, sir, yes. 7 Q. Can you tell us what some of those are? 8 A. Yes, I belong to the National Rehabilitation 9 Association, and the National Rehabilitation 10 Counselor's Association, and the Michigan 11 counterparts of those. I belong to the American 12 Counseling Association, and the American 13 Rehabilitation Counseling Association, and the 14 Michigan counterparts of that. 15 I am the past president and member of the 16 Metropolitan Detroit Rehabilitation Association. I 17 am the past president of the Michigan Association of 18 Rehabilitation Professionals in the private sector. 19 I also belong to the Brain Injury Association of 20 America, and the Michigan counterpart of that, and 21 the Individual Case Managers Association, and the 22 Michigan counterpart of that organization. 23 Q. Have you received any honors and awards within your 24 professional practice? 25 A. I have, sir, yes. 8 1 Q. Tell us a little bit, if you would, without -- I 2 know it's sometimes difficult to blow your own horn, 3 but we need to understand something about your 4 background. Can you tell us about some of the 5 honors that you've achieved? 6 A. Sure. Early on in my career, I received an award 7 from the President of the United States for 8 furthering the employment of the handicapped for 9 work I did in returning injured workers back to work 10 in the auto industry in the metropolitan Detroit 11 area. 12 1986 I was named to the National Distinguished 13 Registry in Medical and Vocational Rehabilitation. 14 1996 I was given a distinguished career award by the 15 Michigan Rehabilitation Association. And in 1997, I 16 was one of 20 counselors identified as exemplary 17 rehabilitation counselors to be studied by a 18 doctoral student at Michigan State University for 19 the future training of rehabilitation counselors in 20 the private sector. 21 Q. I note that you are working through a corporation 22 known as Robert B. Ancell & Associates, Inc. 23 A. Yes, sir, that's correct. 24 Q. Tell us a little bit about your employment 25 background, if you would -- 9 1 A. Sure. 2 Q. -- and history. 3 A. Yes, just prior to graduating from the University of 4 Detroit, I was hired by the State of Michigan, 5 Department of Education to help develop a program to 6 deal with people hurt in work accidents, and I 7 started in August of 1967 to develop that program in 8 the Wayne County Area, which is the metropolitan 9 Detroit area, and the program grew fairly quickly 10 and I was promoted through the ranks from a 11 counselor, to a unit leader, to an assistant 12 district supervisor, to a district supervisor, where 13 I ran not only the injured worker program, but I 14 developed and ran programs for people that were 15 severely disabled. And I did that for nine and a 16 half years with the government before leaving in 17 January of '76 to go into the private practice of 18 rehabilitation counseling. 19 And throughout that period I also taught part 20 time at night at a place called Michigan Lutheran 21 College which turned into Shaw College of Detroit, 22 and I taught psychology, and I also lectured at 23 Wayne State University to rehabilitation sheltered 24 workshop administrators, and I also taught at a 25 community college in the field of psychology. 10 1 And then in '76 I went into private practice, 2 and that's what I'm in now. I and two Registered 3 Nurses see clients, develop plans to help people 4 find or develop vocational objectives, and the 5 nurses get involved in medical management issues as 6 it relates to our injured workers, people hurt in 7 auto accidents, and people that are catastrophically 8 disabled, and we coordinate their medical care. 9 Q. So you have nurses working -- 10 A. I have two -- 11 Q. -- for you? 12 A. Two full-time nurses, Registered Nurses, who are 13 rehabilitation nurses, and they do case management 14 on our clinical cases that we deal with on a routine 15 basis. 16 Q. You talked a bit about teaching that you've done. 17 Let's focus on that a little bit. Could you tell us 18 what your teaching experience is? 19 A. Well, I've taught at a four-year institution in the 20 field of psychology some years ago, I've also taught 21 at a community college in the field of psychology, 22 and I've also lectured at the graduate school level 23 to rehabilitation counselors on the nuances, if you 24 will, of dealing with people that get injured later 25 on in life as opposed to individuals who might be 11 1 born with a particular problem. 2 Q. Who is it -- what types of people refer clients to 3 your organization? 4 A. Employers or their representatives, since I'm 5 dealing with injured workers, physicians, 6 psychologists, pain clinics, the government, my 7 former employer, in Michigan the Consumer and 8 Industrial Commission, former clients refer clients 9 to me. 10 There's a portion of my practice that's 11 referrals from lawyers, either plaintiff lawyers or 12 defense lawyers, which are typically evaluations of 13 an individual to determine their earnings capacity 14 pre and post injury. 15 Q. Can you give us some insight into -- well, I'm a 16 plaintiff's lawyer, and I referred Mr. Ray to you, I 17 believe. Can you give us some idea as to how much 18 of your practice deals with those types of 19 referrals? 20 A. About 40 percent of my time is spent on referrals 21 from both plaintiff and defense lawyers where I'm 22 essentially just evaluating the individual and not 23 asked to get involved in their rehabilitation, 24 although on a rare occasion I may be asked, but it 25 is a rare occasion. 12 1 So about 40 percent of my time is in that part, 2 the other 60 percent is the clinical work that I do 3 with the nurses as it relates to injured workers and 4 people hurt in auto accidents. 5 Q. How frequently have you been asked to testify in a 6 courtroom? 7 A. Pretty frequently, given the fact that I only deal 8 with people hurt in accidents or some trauma, and I 9 only deal with people that are in the legal system, 10 so I am called on pretty frequently to render 11 opinions regarding people's ability to work, as 12 opposed to some rehabilitation counselors who don't 13 deal with this population. 14 Q. Now, you had David Ray referred to you, I believe, 15 by my co-counsel in this case, Leonard Davis? 16 A. That is correct, sir. 17 Q. Let's talk about your relationship with me first, 18 and then we'll move on to Mr. Davis. Has my office 19 ever referred any cases to you besides this case? 20 A. Not to my knowledge, no. 21 Q. Now, Mr. Davis, I anticipate, will not be in the 22 courtroom, but Mr. Davis is affiliated with me on 23 this case. Have you ever had the opportunity to 24 work with Mr. Davis on a case before? 25 A. Yes, I believe I've had a couple of cases in the 13 1 past with Mr. Davis prior to this case. 2 Q. All right. Let's talk about your task when you 3 evaluate cases as a general principle first, and 4 then we'll talk more specifically about David. Can 5 you tell us how it is that you perform a vocational 6 rehabilitation evaluation? 7 A. Yes. It's traditionally a four-step approach. The 8 first approach -- first part of it is to interview 9 and take a history from the individual, which goes 10 into what happened to them, the kinds of treatment 11 they've received, and where they're at in their 12 treatment when I see them. I also want to know what 13 kind of medicines they're taking, what kind of 14 previous medical problems they may have had that I 15 need to be concerned about, their educational 16 background, their work background, their social 17 background, what kinds of symptoms they're having, 18 what kinds of limitations do they have, what do they 19 do all day, and basically how do they perceive the 20 future. 21 The second part of it is to do some vocational 22 testing, which always includes, where appropriate, 23 achievement testing, some intelligence testing, 24 interest inventory, and in this case dexterity 25 testing, since I'm dealing with an upper extremity 14 1 problem. In other cases, it may include other kinds 2 of testing. 3 The third thing that I do is review medical 4 records that are supplied to me usually by the 5 referral source. They can be -- they can include 6 medical records, but also employment records or 7 other records that are pertinent to the individual 8 situation. 9 And the fourth part of the evaluation process 10 is to come to a conclusion about to what extent, if 11 any, the person's limitations affects their previous 12 earnings capacity. In other words, their power to 13 earn money versus what they're capable of doing now 14 in the world of work, given their limitations. 15 That's the process that I go through, and that's the 16 process I went through with Mr. Ray. 17 Q. So when you -- you had an opportunity to meet Mr. 18 Ray? 19 A. I met with Mr. Ray, and I tested Mr. Ray, and I 20 reviewed the records that were supplied to me 21 regarding Mr. Ray. 22 Q. Do you know when that evaluation took place? 23 A. Yes, I do. I just have to grab my notes. I thought 24 I had it here. 25 Q. Maybe I can help you. Are you looking for something 15 1 in particular? 2 A. Well, I'm looking for my notes. My report is dated 3 January 18th, 2000, but that was after I had seen 4 him, and I had -- 5 Q. Well, let's go off the record and you can find your 6 notes. 7 VIDEOTAPE OPERATOR: We're off the 8 record. 9 - - - - 10 (Thereupon, a discussion was had off 11 the record.) 12 - - - - 13 VIDEOTAPE OPERATOR: We're back on the 14 record. 15 A. Yes, I saw him on November 28th, 2000. 16 Q. All right. And then you wrote a report dated 17 January 18th, I believe, 2001? 18 A. That is correct. 19 Q. Okay. When you evaluated Mr. Ray, what were you 20 attempting to determine? 21 A. Well, I was determining, first of all, his 22 background. In other words, what kinds of injuries 23 he sustained, what kind of treatment he had, what 24 kind of work did he do in the past, and what skills 25 did he have as it relates to that. 16 1 I also was determining what his potential was 2 for retraining, since that's always a component of 3 my analysis. So those were the major areas that I 4 was concerned about addressing when I saw him in my 5 offices. 6 Q. And with specificity, if you can, what materials and 7 items did you review in coming to those 8 conclusions? 9 A. I was provided with medical reports regarding Mr. 10 Ray, I was also provided with physical medicine and 11 rehabilitation evaluations done by Dr. Klejka, and I 12 had a resume of Mr. Ray, along with job leads that 13 he had sought after, and I have been provided with 14 his personnel file from his employer, and I have 15 been provided with his deposition, and I have also 16 just recently today reviewed the deposition of a Mr. 17 Twitty, I believe, whose deposition was taken after 18 mine was taken last week. 19 Q. So it's fair to say some of these materials that you 20 just described were materials you reviewed before 21 your report of January 18th, 2001, some were 22 materials that you reviewed afterwards? 23 A. That's correct, yes, sir. 24 Q. Okay. Tell us what the significant factors were 25 that you learned from your evaluation of all these 17 1 materials? 2 A. The significant factors are, first of all, that he's 3 43 years of age at the time that I saw him, and that 4 he had sustained an injury to his left biceps tendon 5 and muscle, and that he ultimately went to surgery, 6 and after that surgery he was essentially not able 7 to use his left hand as it relates to fine motor 8 dexterity. 9 And when I saw him, he was essentially taking 10 blood pressure medicine and antidepressant 11 medication. He had had some previous medical 12 problems, but they were not significant, he had had 13 knee surgery, and he had had a tonsillectomy and 14 adenoidectomy, but neither one of those precluded 15 him from working. 16 Of significance, also that he was a 12th grade 17 graduate, he was married, and he had been working 18 for the Rossborough Manufacturing Company as a field 19 technician for approximately ten years, and he did 20 return back to work after the initial injury to the 21 biceps, and he then went to surgery and returned to 22 work after that for a period of time until June of 23 1999. Then approximately a year later, he was able 24 to secure a job as a security person earning 25 approximately eight dollars per hour. 18 1 When I saw him in November of 2000, he was 2 complaining about the scar that he had, it bothered 3 him, his inability to completely supinate, turn his 4 hand all the way over, that he had numbness from the 5 wrist to the thumb, and that he had loss of strength 6 as it relates to his fingers and his hand on the 7 left side. 8 He also described pain, and I asked him to rate 9 it for me on a scale of zero to ten, zero is no 10 pain, ten is the worst he ever had no matter what it 11 was due to, and he rated it as a seven level. He 12 also indicated that he had gained some weight, about 13 40 pounds, since this incident, and he was having 14 sleeping problems, he was more irritable, had a 15 short fuse, and he was kind of angry. 16 He felt that his condition was essentially the 17 same, it was plateaued, it wasn't getting better, it 18 wasn't getting worse. He was working, working six 19 days per week when I talked with him, and he had 20 limitations, the things that he used to do that he 21 wasn't doing before, avocational kinds of things. 22 He felt his restrictions were no lifting greater 23 than twelve pounds, and he had had one job where he 24 was hired, it lasted about five weeks, and he wasn't 25 able to continue with that job. He was too slow and 19 1 they let him go. And he had worked through a 2 temporary agency. I then basically gave him some 3 tests. 4 Q. Before we get into the tests, let me ask you 5 something about his employment at the time that you 6 saw him versus the employment as you understand it 7 which he had when he worked for Rossborough. Was he 8 employed in a similar capacity? 9 A. No, the job that he had with Rossborough is a 10 technical, semiskilled technical field technician 11 job requiring bimanual, or two-handed, activities 12 and using a great many different types of tools that 13 I also had a list of when I -- available to me. 14 The job that he had as a security person, he 15 was -- is not even close to what he was doing before 16 from a skill standpoint, and he was making less 17 money. He was making 11.50 an hour plus expenses, 18 and in the job as the security person he was earning 19 about eight dollars per hour. 20 Q. Okay. 21 A. Although he had overtime with both jobs, the 22 Rossborough job, and according to his deposition he 23 also had some hours of overtime with his security 24 job too. 25 Q. So let's talk a little bit about the tests that you 20 1 performed. I take it these tests were done in order 2 to try to make certain determinations. Why don't 3 you tell me what you were trying to determine, and 4 then tell me what tests it is that you did in order 5 to make those determinations. 6 A. Well, the first thing that I tried to do is validate 7 education, because where I come from you cannot 8 assume that someone who completes high school is 9 functioning at that level. Some function higher, 10 some function lower, some function at the level. 11 So the first test that I typically give people 12 is called the wide range achievement test, R3. 13 Achievement is what you can do now based on what 14 you've learned in the past, and I gave David a 15 reading test and a math test. 16 On the reading test he scored at the standard 17 score of 70. Average score is 100, so this is 18 significantly below average. It's two standard 19 deviations below the mean, and it's at a 5th grade 20 level. 21 On the arithmetic portion of the same test, 22 which again is an achievement test, he got a 23 standard score of 69, which is consistent with the 24 reading score, which is at the 2nd percentile and at 25 a 4th grade level. 21 1 So both of his scores are significantly below 2 average. And what it tells us, or tells me, is that 3 this is not somebody who's going to go on to college 4 or go on to advanced academic training, for whatever 5 reasons, and they're not related to the biceps issue 6 or the hand issue. He is just not a student. So 7 that's the significance of that. 8 Q. Well, let me inquire about that a little bit, if I 9 may. We've asked you to evaluate Mr. Ray's earning 10 capacity -- 11 A. Correct. 12 Q. -- essentially. 13 A. Correct. 14 Q. And his ability to function in the work force. 15 A. Right. 16 Q. Now, as compared with before he had this surgery. 17 A. Correct. 18 Q. You've just indicated to the jury and to us here in 19 this room that these scores on the reading and 20 arithmetic test have nothing to do with that injury? 21 A. Correct. 22 Q. So tell us what relevance that has to do with your 23 analysis. 24 A. It has to do with looking at what kinds of 25 opportunities I could look at in the future to give 22 1 him more skills, such as retraining him, sending him 2 to school, learning how to do something else as it 3 relates to less use of his hands. So that's the 4 importance of it. 5 And understanding that he is not a student and 6 probably never was a student, per se, that has a 7 significant impact on options that you might want to 8 consider in the future for him. 9 Q. Do those scores suggest a -- do the results of those 10 tests in any way help you define the range of 11 options that are open to him? 12 A. Yes. It defines the fact that you could not 13 consider retraining him for other semiskilled 14 occupations in a school type setting, that with 15 these kinds of scores you would have to look at 16 unskilled low end very -- low end semiskilled type 17 of work, and we'll learn later on that does not put 18 a premium on the use of both of his hands, which 19 really the options available to you are very, very 20 restrictive under those kinds of circumstances. 21 Q. Okay. So you did those achievement tests that 22 you -- 23 A. Right. 24 Q. -- just outlined. Did you do any other tests? 25 A. Yes. I did a vocabulary and abstraction test, which 23 1 is more of a test of intelligence, if you will. 2 It's loaded for vocabulary, which he did not do well 3 on, and it's also loaded for abstraction, which he 4 also did not do so well on. 5 His combined score, however, was 86. 100 is 6 average, so it's at the 18th percentile, and that's 7 right at the cusp, right on the edge, of average, 8 low end of average on a bell shaped curve, on a C 9 range on a bell shaped curve. He's at the low end 10 of the C range. 11 Q. All right. 12 A. I then gave him a test that does not relate at all 13 to reading or education. It's a visual problem 14 solving test, it's called the Modified Raven Test, 15 and again 100 is average, and he scored 100, which 16 is right at the 50th percentile. 17 So what that tells you is that he's of average 18 intelligence, but he has difficulty as it relates to 19 academic learning, for whatever reasons, and I don't 20 know the reason. But this is not somebody who 21 doesn't have the mental ability to learn, it's just 22 that you have to know how to teach him and you need 23 to teach him by showing him as opposed to giving him 24 a book or those kinds of -- or sitting in a 25 classroom taking notes, those kinds of things. 24 1 Q. What does that type of information tell you as to 2 the options that are available to Dave? 3 A. Well, what that says is that what he did in the past 4 was pretty consistent with what he was capable of 5 doing. In other words, if you show him how to do 6 things and you teach him how to do it, he should be 7 able to do it without any difficulties as it relates 8 to gaining the knowledge to do it, so that this is a 9 kind of a hands-on kind of person who is good with 10 his hands, could do what he was told to do and be 11 instructed that way, and should not have any 12 difficulty learning it if you taught it to him 13 correctly. So that's what that particular 14 instrument told me. 15 Q. All right. 16 A. The next instrument I gave him is called the Groove 17 Pegboard Test, which is a test of dexterity, fine 18 motor dexterity, and it is a complex visual motor 19 coordination test. What that means is that it is a 20 more difficult dexterity test than what's commonly 21 called the Perdu Pegboard Test. 22 And what he's asked to do is he's asked to pick 23 up pegs and put them in holes, in 25 holes, and he's 24 measured over time with his right hand, with his 25 left hand, and he's compared to 43-year-old males 25 1 and the norms for that. 2 Q. How did he do on that test? 3 A. Well, with his right hand, which is his dominant 4 hand and his uninjured hand, he did the task in 115 5 seconds, so a little over a minute. 6 With his left hand, which is his injured hand, 7 he did the task in 193 seconds. So he was well over 8 a minute slower with his left hand than with his 9 right hand, and these results would be significantly 10 below average in terms of being able to do two 11 handed work in the industrial marketplace. 12 Q. Which is the type of work he was doing before? 13 A. Yeah, exactly the type of work that he was doing 14 before. 15 Q. Have you brought that test with you here? 16 A. Yeah, I brought it with me. 17 Q. Why don't we -- 18 MR. WILT: Just let me object to 19 anything regarding this. 20 Q. Why don't we do this. I'll ask you to show the 21 grooved pegboard test to the jury at this time and 22 how it works, if you would. 23 A. Yes. I'm holding it up. It is done on a table flat 24 with the person in front of it, but with their right 25 hand, if you're right-handed dominant, they pick up 26 1 pegs that are about this long, about an inch long. 2 And I don't know if the camera can pick it up, but 3 they look -- they're round on one side, they're 4 square on the other side. It looks like a key. 5 And the board, each one of the holes is drilled 6 differently. It turns in a different situation, so 7 if the person is asked to pick up the peg and then 8 stick it in the hole, pick up the next peg and then 9 stick it in the hole, there we go, and go as fast as 10 they can filling up the board. 11 When they're asked to do it with their left 12 hand, they do the same task but they start at this 13 side of the board and go that way -- or I'm sorry, 14 this side and go that way. And the goal is to fill 15 up all 25 holes here on the board. And at the end 16 of that period of time, I stop the stopwatch and get 17 the number of seconds it takes for the person to do 18 it. Mr. Ray's case 115 with his right hand, with 19 his left hand 193 seconds. That's the way this 20 instrument is done. 21 Understand, the individual has to be able to 22 manipulate these pegs and turn them because each one 23 of these holes is pointing in a different direction, 24 and you have to be able to manipulate the peg to do 25 that. 27 1 Q. So you were present while Mr. Ray was asked to do 2 this Groove Pegboard Test? 3 A. Yeah, I have to be present. I, first of all, have 4 to show him what he has to do, I then have to be 5 there with a stopwatch to get the time, so I'm 6 observing him doing the task. 7 Q. So you observed, and I guess it's just under two 8 minutes with his right hand, 115 seconds, and 193 9 with his left? 10 A. Correct. 11 Q. And what does that tell you about his left hand and 12 his abilities as far as dexterity is concerned on 13 the left? 14 A. Well, it's significantly slower. You expect a 15 difference of about 10 percent between dominant and 16 nondominant hands, and in Mr. Ray's case it's 17 significantly higher than that. 18 And when you look at the norm group, 19 43-year-old males, he was significantly slower than 20 they are as it relates to the left hand. So from a, 21 what we call, a bimanual perspective, in other words 22 work that requires two hands like his jobs have, he 23 would be at a very significant disadvantage to do 24 that type of fine motor work. 25 Q. All right. Did you see any evidence in any of your 28 1 testing that you did of Dave or in any of the 2 materials that you obtained historically from him to 3 suggest that Mr. Ray is intentionally performing in 4 a substandard fashion on these tests? 5 A. No, I didn't. First of all, he would have to know 6 what substandard is, and I think it's a fair 7 assumption on my part that he doesn't have the 8 manuals available to him to know what I'm going to 9 give him. 10 And I would have expected that he would have 11 done better on the nonverbal test, the visual 12 problem solving test, because that's the kind of 13 work he's done in his life, and in fact he did. So 14 the results were consistent with -- from that 15 perspective. 16 Obviously, I was not aware of the fact when I 17 first met him of his educational problems, so that 18 was -- that's new information to me, but the results 19 were very consistent. He got a 69 on one and a 70 20 on the other. That's pretty consistent. And to 21 know which -- the number it takes to do that, I mean 22 you've got to be very, very good. 23 Q. Is there anything in his work history since his 24 injury that suggests to you that he's a malingerer? 25 A. Well, no, certainly not a malingerer. He went back 29 1 to work after the biceps injury, he worked up until 2 the surgery, he went back to work after the surgery, 3 and, you know, just reading the deposition of Mr. 4 Twitty, apparently with a great deal of help from 5 other workers. 6 And then since no longer working at his former 7 employer, he went out and sought out work at a large 8 number of employers, and in fact has been successful 9 in finding work. That's not a picture of a 10 malingerer or somebody who is, you know, just 11 sitting home watching television. This is somebody 12 who has attempted to work, and in fact has gotten 13 other jobs in the meantime, other than the current 14 one, but just couldn't continue because he was slow 15 at it. 16 MR. WILT: Objection. 17 Q. Is there a concept in your field known as earning 18 capacity? 19 A. There is, sir. 20 Q. Or earnings capacity? 21 A. There is, sir. 22 Q. Why don't you define that for the jury, if you 23 would. 24 A. Yes. That's the power to earn money. In Mr. Ray's 25 case, that relates to the power he had and the type 30 1 of work he had done for the ten years prior to this 2 set of circumstances. And in his case, looking at 3 his background, it was my opinion that his previous 4 earning capacity, or his power to earn money, was in 5 the 30 to $40,000 a year range. 6 And based on his current type of work that he's 7 doing, the eight dollars an hour would translate 8 into 16,000. But when I wrote this report, I did 9 not have his deposition, I don't believe. And in 10 his deposition I understand that he is working 11 overtime, so this will come to be more money than 12 16,000, but the value of the job is eight dollars an 13 hour. 14 Q. The jury is going to hear from an economist by the 15 name of Dr. John Burke. Do you know Dr. Burke? 16 A. Yes. 17 Q. Is it my understanding that you're going to leave 18 the precise figures as to how his reduction in 19 earning capacity translates into dollars to Dr. 20 Burke? 21 A. Yes. I've done nothing other than to take a look at 22 what his pre-earning capacity is and what his 23 current earning capacity is. I would leave all the 24 calculations to Dr. Burke. 25 Q. Is it your opinion -- do you have an opinion as to 31 1 whether David Ray has experienced a reduction in 2 earning capacity as a result of the injury to his 3 posterior interosseous nerve and its affects on his 4 hand and his grip and his ability to use his 5 fingers? 6 A. I do have an opinion. 7 Q. And what is your opinion? 8 A. My opinion is that that injury to his hand and his 9 ability -- and how it translates into dexterity is 10 significantly vocationally limiting and has reduced 11 his earnings capacity significantly as it relates to 12 the kind of work he did before and what he's capable 13 of doing now. 14 More importantly, he has lost significant 15 options. In other words, he had a universe of 16 occupations he could have done and gone to if he did 17 not have these -- this problem he has with his 18 hand. He's lost those options, so his universe of 19 occupations to look at is significantly reduced by 20 virtue of the dexterity problem he has with his 21 hand, and that would not have occurred had he not 22 had the problem or not had -- would not occur if he 23 didn't have these problems with his hand, from a 24 dexterity standpoint. 25 Q. Do you hold those opinions to a reasonable 32 1 professional certainty? 2 A. I do, sir, yes. 3 Q. Now, you understand that, and I think you've already 4 mentioned this, that Mr. Ray continued to work at 5 Rossborough -- 6 A. Yes. 7 Q. -- after he had the surgery where his nerve was 8 injured, is that correct, is that your 9 understanding? 10 A. Yes, he did return to work after the surgery, that 11 is correct. 12 Q. Well, doesn't that, in fact, establish that he 13 didn't have a loss of earnings capacity brought 14 about by the injury that occurred during his 15 surgery? 16 A. No. He shared with me that when he returned to work 17 after his -- after the surgery, he was limited in 18 his ability to perform work, and when I read the 19 deposition of Mr. Twitty it further delineated the 20 fact that his co-workers did a great deal for him in 21 terms of the work that he was unable to do from a 22 dexterity standpoint, so he's lost his earning 23 capacity. 24 It's like this cup will hold, say, eight ounces 25 of fluid, but if it has a hole in the bottom of it 33 1 it's not capable of doing that. We can pour coffee 2 in here all day long and try to keep it up, but the 3 minute we stop it's not able to hold what it was 4 able to hold before, and that's kind of what went 5 on, as I understand it, through Mr. Twitty's 6 deposition and when I talked to Mr. Ray. 7 Q. What is it that -- how is it you understand that he 8 lost his job? 9 A. My understanding is that the company moved out of 10 town, essentially. 11 Q. Okay, so -- 12 A. And everybody lost their job. 13 Q. Okay. So why is, being the Devil's advocate, why is 14 David's situation any different than any of the 15 other folks that were let go at that time? 16 A. Well, because the other folks had all kinds of 17 choices they could go look for work and do, and in 18 fact Mr. Twitty went on to two other jobs since he 19 was -- his employment ended at Rossborough. 20 Mr. Ray has very limited options as it relates 21 to the kinds of jobs that he would qualify for, 22 given the restrictions imposed by his doctor and the 23 results of the testing. And we see, you know, what 24 is really a yeoman's effort to try to find work 25 through the employment service. And in spite of all 34 1 this, he's only been able to find a few kinds of 2 positions, some of which have not worked out, one 3 has. And the one that has is essentially 4 significantly below his previous skill level and 5 doesn't require him to use two hands, so it's a job 6 he can perform. 7 Q. So there are certain jobs he can do? 8 A. Oh, absolutely. He's not totally disabled by any 9 stretch of the imagination. 10 Q. Well, if Dave is no longer employable at a job 11 similar to the one that he had before, why can't he 12 simply be retrained to find another job of a similar 13 amount of pay to the one that he had before? 14 A. Well, when you analyze the kind of work that he did, 15 what's commonly called semiskilled and unskilled 16 work, 95 percent of those job titles, and there's 17 like 12,741 job titles, but if you look at the 18 subset of unskilled and semiskilled, 95 percent of 19 those require two-handed dexterity to an occasional, 20 frequent or constant degree. So that your universe 21 that you're dealing with is, first of all, very 22 small. 23 Unfortunately, for whatever reasons, and again 24 they have nothing to do with his biceps injury, he 25 is not an academic student. He's not somebody who's 35 1 going to go to college. He's not somebody who's 2 going to go to, you know, a school program and learn 3 to be a bookkeeper, or learn to be a paralegal, or 4 learn to be an electronics technician. It's not 5 something that he was going to do before this, and 6 it's not something he's going to do now. 7 He is limited to unskilled jobs that pay in the 8 area in which he's being paid, and he has been 9 successful in finding one of those jobs, and he's 10 been working at it now for some period of time. 11 Q. Okay. In a nutshell then, do you have an opinion 12 that you hold to a reasonable professional 13 probability as to whether David Ray has sustained a 14 diminishment in his earning capacity as a result of 15 his injury to his posterior interosseous nerve? 16 A. I do, sir. 17 Q. And what is that opinion? 18 A. My opinion is that he has lost significant earnings 19 capacity, he's lost significant options in the world 20 of work, and he's essentially restricted to 21 one-handed unskilled types of jobs that pay in the 22 area of eight dollars per hour, and he is not a 23 candidate for retraining, academic retraining. 24 MR. HIRSHMAN: That's all I have. Your 25 witness. 36 1 - - - - 2 CROSS-EXAMINATION OF ROBERT B. ANCELL, Ph.D. 3 BY MR. WILT: 4 Q. Hello, Dr. Ancell. 5 A. Good morning, sir. 6 Q. My name is Ron Wilt, and you and I met I think about 7 a week ago. I represent Dr. Stearns. I just want 8 to go over a few things. 9 Just so we're clear, you don't have any 10 information, as you sit here today, that Mr. Ray 11 would not still be employed today at Rossborough 12 Manufacturing had that company not decided to move 13 its operations? 14 A. That's correct. 15 Q. Okay. And can we agree that one factor that 16 influences a person's ability to find a particular 17 job is whether the position they desire is in, and 18 I'll use your terminology, a burgeoning field or a 19 burgeoned field? 20 A. It's a possibility. I mean, I don't know that all 21 selections of employment have to fall into that 22 category, but obviously the more openings the higher 23 the probability that someone might be, you know, 24 interested in it. 25 Q. And just so the jury understands, when we refer to a 37 1 burgeoning field or a burgeoned field, that's a 2 field where there's a significant number of 3 positions available to be filled, is that a fair -- 4 A. Yeah, a fast growing field. You know, the computer 5 field was that way for a while, you know, I'm not so 6 sure it is now, but it was at one time. You know, 7 everybody was getting a computer science degree in 8 one form or another. 9 Q. And we talked about, or you and Mr. Hirshman talked 10 about Mr. Ray and his prior employment at 11 Rossborough was as a service technician or a field 12 technician? 13 A. Yes, sir. 14 Q. Within the steel industry, correct? 15 A. Yes, I believe that's correct. 16 Q. Okay. And Mr. Twitty was one of his co-workers at a 17 similar position? 18 A. Correct. 19 Q. Okay. And has Mr. Twitty been able to find another 20 position as a field technician or as a service 21 technician? 22 A. Not according to what I read in his deposition, no. 23 Q. And do you know whether the field of service 24 technicians in the steel industry is a burgeoning 25 industry in Northern Ohio? 38 1 A. I can't answer that. I have not done the research 2 to find that out, so I don't know the answer to 3 that, sir. 4 Q. All right. Now, you talked about Mr. Ray provided 5 you with a host of, I think, job notices? 6 A. Yes, sir, that's correct. 7 Q. Okay. There's quite a few of those, aren't there? 8 A. There are, sir, yes. 9 Q. Do you know how many of those he actually applied 10 to? 11 A. No, I don't know -- no, I don't. I can't answer 12 that question. 13 Q. All right. And we can agree that, and I think 14 you've referred to this, but in all fairness, Mr. 15 Ray is still a candidate for unskilled jobs, such as 16 loading, off loading, inspecting, jobs such as 17 that? 18 A. No, I don't know that I would go with loading and 19 off loading. I will tell you that unskilled work is 20 defined as loading and unloading. That's what the 21 definition is. If it's a one-handed loading and 22 unloading, I would say yes to you. Certainly 23 certain inspection jobs that can be done one handed, 24 yes, he could do that type of work. But by 25 definition, unskilled is loading and off loading, 39 1 just by definition. 2 Q. Okay. And did you see in Dr. Klejka's report that 3 he did not put any limitations on Mr. Ray in his 4 ability to carry or lift things, other than I think 5 a weight restriction of 20 pounds of frequent use 6 and 50 pounds of maximum lift? 7 A. I think that's a fair statement, yes, sir. 8 Q. All right. And as to any of Mr. Ray's specific 9 physical limitations, although you've referred to 10 this pegboard, you would defer those to the medical 11 care providers? 12 A. I defer to the doctors for the limitations. I don't 13 defer to them for the results of the dexterity test, 14 which is a vocational test, not a medical test, but 15 I always defer to doctors for their medical 16 opinions, yes. 17 Q. And you talked about Mr. Ray not knowing what the 18 manuals would say when he's taking these tests so he 19 could influence the results one way or the other? 20 A. Correct. 21 Q. But clearly when performing the dexterity test -- 22 A. Uh-huh. 23 Q. -- he knows that he's being timed? 24 A. Yes, sir. 25 Q. And he's supposed to try to do it as fast as 40 1 possible, that's the goal? 2 A. That's the instruction, and I'm there to watch him, 3 so I see whether he, you know, how he attempts to do 4 it, so -- 5 Q. As you sit here today, do you -- 6 MR. HIRSHMAN: Hold on a minute. I'm 7 going to object. 8 Q. I'm sorry. Go ahead. If you weren't through, 9 Doctor, please, continue. 10 A. No, that's okay. Go ahead, I'm sorry. 11 Q. Okay. And as you sit here today, do you have a 12 specific recollection of why Mr. Ray was 13 significantly slower in his left hand? 14 A. It related to his ability to manipulate the pegs, 15 but beyond that I can't give you the, you know, the 16 physiology of it, other than that this is a motor 17 nerve and he's got problems with dexterity. 18 Q. Okay. I want you to assume any restriction 19 regarding lifting, as we just talked about from Dr. 20 Klejka, is associated with the initial rupture of 21 the distal biceps and is not associated with any 22 injury to the posterior interosseous nerve. Okay? 23 A. Fine. I'll assume whatever you ask me to assume. 24 Q. All right. Now, at his prior job at Rossborough I 25 think you can agree, or we can agree, that the 41 1 20-pound restriction would not have limited his 2 ability to do his job, correct? 3 A. I don't know the answer -- I don't know that I can 4 agree. I can tell you that he didn't have any 5 difficulty doing his job when he returned. I don't 6 know if the 20 pounds -- because I don't have the 7 measurements on the torquing with these huge 8 wrenches. 9 Q. Right. 10 A. That he had to use, so I don't know that that's 11 necessarily true. I do know that he testified in 12 his deposition that he had no difficulty doing it 13 before the surgery, and I believe Mr. Twitty also 14 talked about that in his deposition. 15 Q. Well, when I took your deposition last time, 16 actually a week ago, do you recall telling me at 17 that time that you did not believe the restriction 18 of 20 pounds would have any affect upon his ability 19 to perform his job duties? 20 A. I'd really have to look at the answer. I mean, 21 again, I don't know that I have enough data to be 22 able to answer that. I can just tell you that from 23 his deposition he indicated he had no difficulty 24 doing the job, so whether it was 20 pounds or more 25 than 20 pounds, he had no difficulty doing the job 42 1 until after -- 2 Q. Okay. 3 A. -- the surgery. 4 Q. Okay. And can we agree that the 20-pound lifting 5 restriction would not have, at least in your 6 opinion, have affected his ability to manipulate 7 65-pound pipes? 8 MR. HIRSHMAN: It was a 20-pound 9 repeated lifting restriction, just so that we 10 have that correctly. 11 MR. WILT: That's all right. 12 A. Now, you're asking me whether that restriction would 13 have not -- he would have had -- with that 14 restriction he would not have been able to 15 manipulate 65-pound pipes? I don't know. I don't 16 know the answer to that. I can just tell you that 17 he did not have any difficulty doing his duties 18 prior to the surgery. Now, I don't know how often 19 65-pound pipe was involved in this situation prior 20 to the surgery. 21 Q. Well, do you recall in your prior deposition on page 22 35, line 3, I asked you: Again, in his prior job he 23 was required to use -- actually, that's not the 24 exact quote I want. Let me be clear so I'm fair to 25 you, Doctor. 43 1 Okay. It's actually page 34, line 6. So if at 2 his prior job he regularly had to use, and I think 3 we can agree when we're referring to his prior job 4 we're referring to Rossborough? 5 A. I agree with you, sir. 6 Q. If he regularly had to use a -- carry a pipe and 7 manipulate a pipe and sampler of 65 pounds that 8 would be something, from your position as a 9 vocational specialist, that might be a job you would 10 recommend him not to pursue? 11 And your answer: No, not -- as I said, his two 12 hands, the other hand is fine. 13 And I said: All right. 14 And you said: So this is a matter of using the 15 left hand as an assist in regard to that, so I would 16 not necessarily say no to that. 17 A. I agree, yeah. 18 Q. Okay. So he could perform a job which required him 19 to manipulate 65-pound pipes? 20 A. It's possible, certainly. There's nothing wrong 21 with his dominant hand. I think that's what I was 22 trying to say. And the restriction is to his left 23 arm, not to his right arm. 24 Q. Okay. And it's along the same lines that you would 25 have no problem as a vocational specialist 44 1 recommending him to work at a job that required him 2 to use 20 to 30-pound pipe wrenches and to torque 3 those? 4 A. Not with his right hand. I would have no problem 5 with that, that's correct. 6 Q. Okay. 7 A. My issue relates to the fine motor dexterity of the 8 left hand. He has no problem, as I understand it, 9 with his right arm or hand. 10 Q. All right. I understand. 11 A. Okay. 12 Q. And along the same lines, you would have no problem 13 with him carrying 70 to 80-pound objects so long as 14 he does it with his right arm; fair statement? 15 A. Yeah, I don't have a problem with that. 16 Q. Okay. And supination, as we talked about 17 supination, that's where you turn your hand over 18 palm up? 19 A. Palm up, right. 20 Q. Okay. And is that, and maybe you do or do not know 21 that, is that one of the movements that's involved 22 in torquing a screwdriver? 23 A. That, unless it's a ratcheted screwdriver, the 24 answer is, yes, you would have to -- you would have 25 to torque it with your right hand to the right, 45 1 which would be a supination movement. 2 Q. Okay. 3 A. From pronation to supination. 4 Q. And I want you, again, to assume that the testimony 5 in this case by the hand surgeons has been that any 6 loss of ability to supinate is associated with the 7 distal biceps rupture and not the nerve injury. 8 Were you made aware of that? 9 A. I don't know that I am or not. 10 Q. Okay. 11 A. The supination issue is not the issue for me, it's 12 the dexterity. 13 Q. And that's where I'm going. The fact that he has 14 lost his ability to completely supinate to you is 15 not a big deal as far as vocational issues? 16 A. Correct. 17 Q. Okay. And you've repeated this again and again, but 18 the point to you is his fine dexterity -- 19 A. His fine motor. 20 Q. -- that's why he can't perform the job at 21 Rossborough Manufacturing? 22 A. That's why he -- well, that's why he had 23 difficulties performing the job at Rossborough and 24 why he would not be able to perform jobs and has not 25 been able to perform jobs that require those 46 1 skills. 2 Q. But, Doctor, even though Mr. Ray is fine to lift 3 65-pound pipes, carry 75 to 80-pound objects, use 4 30-pound wrenches, I think you told me before he's 5 not somebody though that you think is a good 6 candidate to do something like, let's say, be a bus 7 driver? 8 A. No, I don't, because he's got to -- he's got to be 9 able to manipulate his hand on the wheel as he's 10 turning it or holding onto it. He has difficulty as 11 it relates to those kinds of activities. I 12 understand that once he grabs onto something he has 13 got strength, I'm not suggesting he doesn't. But 14 certainly from a safety standpoint and an ability to 15 have reaction time appropriate, I would not 16 recommend bus driving or truck driving under those 17 kinds of circumstances. 18 Q. Well, Doctor, when I took your testimony a week ago, 19 you never gave me any of those reasons as why he 20 wouldn't be a good bus driver, now, did you? 21 A. I don't know. What page are you referring to? 22 Q. I'm referring to page 50 line 19. 23 I asked you: Why not bus driver? 24 Your answer was: Because you have to be able 25 to manipulate opening the doors, closing the doors, 47 1 you have to sometimes help individuals, especially 2 the disabled, who may have to get on and off your 3 buses. Depending on the bus that you have to drive, 4 you may well have to unload and load luggage. 5 MR. HIRSHMAN: Why don't you read the 6 rest of it. 7 Q. I mean, there are a lot of things that go into this 8 that I would not recommend that he do as a bus 9 driver. 10 The point is, none of the reasons that you 11 specified there, when I took your deposition, are 12 the same things you specified here today; is that 13 correct? 14 A. I didn't give you the same examples, I just gave you 15 another different example, but I would agree with 16 everything I said then, and I agree with what I've 17 said now. 18 Q. Okay. What is wrong with him carrying luggage with 19 his right hand? 20 A. Nothing. 21 Q. What is wrong with him carrying luggage with his 22 left hand once he gets it on him? 23 A. Well, it's just a matter of the amount the luggage 24 weighs. There are some weight restrictions that 25 have been imposed upon him on an occasional or 48 1 frequent basis, and most luggage that people are 2 traveling with is more than 20 pounds. So if you're 3 talking about just his left hand, I would say that 4 would be a problem, but he could do it with his 5 right hand. 6 Q. Okay. But as far as his left hand moving luggage, 7 the fact that he couldn't weigh something that's 8 over 20 or 50 pounds, that has nothing to do with 9 the dexterity in his hand? 10 A. It's got nothing to do with dexterity. That's got 11 to do with opening his hand up and grabbing a hold 12 of it and carrying it in light of the restrictions 13 imposed from a weight standpoint that the doctor 14 placed on him. 15 Q. All right. And opening doors, what is difficult 16 about opening the door of a bus? 17 A. It's not -- usually there's a lever that they have 18 to use with their left hand. 19 Q. Uh-huh. 20 A. And it's grabbing those levers and manipulating 21 those levers and doing it in a timely fashion. It's 22 not that he's incapable of doing it, it's the 23 efficiency with which he can do it and the time 24 frames that are involved in all of that. That's 25 where my concern is. It's not that he's incapable, 49 1 it's just how long it takes him to do it, which is 2 what was demonstrated on the dexterity test. 3 Q. I don't know about what buses you've seen but a lot 4 of them I've seen, Doctor, you just push a button 5 and the door opens in this day and age. Do you 6 think he'd have any trouble pushing a button? 7 A. Should not have a problem pushing a button, no. 8 Q. Now, and I think you referred to this, most people 9 do use their nondominant hand to assist -- 10 A. Yes. 11 Q. -- their dominant hand when performing tasks? 12 A. I agree with that. 13 Q. And that's why he could manipulate a 65-pound 14 white -- or pipe because he could hold the pipe 15 with his right hand and his left hand would be more 16 of a steadying and helping him to keep the pipe 17 under control, rather than really handling the bulk 18 of the weight; is that a fair statement? 19 A. Typically, people -- it depends on how people do 20 it. Typically, the nondominant hand acts as an 21 assist. That's what happens. Now, depending on 22 what you're lifting and how you're lifting it, some 23 people who are lifting heavy things may be lifting 24 it with the left hand while they're trying to work 25 with it with their right hand because that's their 50 1 more usable hand if it's dominant. But again, 2 unless I look at the particular issue, it may be 3 different for people, but most people use their 4 nondominant as an assist. 5 Q. Okay. And I want to go through, just briefly, 6 reiterate some of the things Mr. Ray told you during 7 your interview. One of the things he told you, he 8 had gained 40 pounds -- 9 A. Yes. 10 Q. -- since the operation. 11 A. I don't know if he said since the operation, but 12 since this all happened to him, yes. 13 Q. Okay. Since the fall -- 14 A. Correct. 15 Q. -- of 1998, I believe is when this occurred? 16 A. I believe so, yes. 17 Q. And I think he also offered to you that he's angry 18 and has a short fuse? 19 A. Correct. 20 Q. Okay. Now, that wasn't something you asked him, he 21 just offered that during the interview, correct? 22 A. Well, I asked him what kinds of problems he was 23 having, and that's something that he shared with 24 me. 25 Q. And you asked him at some point to list for you some 51 1 of the things he's not capable of doing now that he 2 was capable of doing before? 3 A. Correct. 4 Q. Okay. And some of the things he listed were playing 5 a guitar? 6 A. Correct. 7 Q. Power lifting? 8 A. Correct. 9 Q. And riding a motorcycle? 10 A. Correct. 11 Q. And he also told you that he had been on 475 job 12 interviews? 13 A. Correct. 14 Q. Now, can we agree though that these things that Mr. 15 Ray has told you, you have no way of independently 16 verifying the accuracy of any of these? 17 A. No. Well, no, I can't verify the accuracy of the 18 guitar playing and those kinds of things. I did see 19 some of the leads that he had and some of the 20 rejections he got, and I think, as we talked last 21 week, I thought 475 was something that I -- would 22 be kind of unusual, but it may have seemed like 23 that, I don't know, but it's pretty high, and I 24 don't think he went on 475 interviews. 25 Q. All right. That's probably a little bit of an 52 1 exaggeration on his part? 2 A. Well, it's his perception, and I don't believe that 3 he went on 475. 4 Q. Do you -- 5 A. Whatever spin one wants to put on it. 6 Q. Do you have a hundred job notices there? 7 A. I haven't counted them. I have a lot. 8 Q. Let me represent to you I have. There's 44. 9 A. Okay. 10 Q. It's a far cry from 475? 11 A. Oh, I agree. I mean, again, it may have seemed like 12 that, but I agree, I told you last week, and I'll 13 tell you today, I don't believe he went on 475 14 interviews. 15 Q. All right. One or two more things, Doctor. 16 And I think you alluded to this, but just so 17 I'm clear, when figuring up the earning capacity I 18 think we can agree that if you're going to assume he 19 worked overtime before you need to assume he's going 20 to work overtime after the injury. 21 A. I think apples to apples, so if we're going to 22 assume overtime, we assume it both ways, although 23 you can't predict it either way, but certainly 24 that's a legitimate way, or look at it with no 25 overtime on either one of the jobs, but compare 53 1 apples to apples, yes. 2 Q. All right. And 2,080, that's the -- considered the 3 number of work hours in a year based upon a 40-hour 4 week? 5 A. Right, 52 weeks a year it will give you 2,080 6 hours. 7 Q. Did you ever talk to any of Mr. Ray's potential 8 employers, the people he did send an application to, 9 to find out why they declined to make him a job 10 offer? 11 A. No, sir, I did not. 12 Q. And as you sit here today, I take it you don't have 13 an opinion one way or the other whether the reason 14 they did not give him an offer of employment was 15 because of his physical limitations? 16 A. I have no opinion as to why they did not, other than 17 the letters that are in the file that speak to 18 reasons, but they're very vague and general reasons, 19 none of which are because of his medical problem. 20 Q. All right. And finally, Doctor, I want you to 21 assume that there's a relatively simple operation 22 called a tendon transfer that would restore Mr. 23 Ray's hand function back to 95 percent of 24 competitive normal. If he regained that hand 25 function, would he be a good candidate for all the 54 1 jobs that he would have been a candidate for prior 2 to the injury to his posterior interosseous nerve? 3 MR. HIRSHMAN: Objection. 4 Q. You can answer. 5 A. I would have to test him and see what the 6 limitations are, but if he got improvement, and 7 depending on the results of his dexterity, obviously 8 the universe of options would be greater than they 9 are now, yes, sir. 10 Q. Okay. And just a couple little follow-ups. 11 98 percent of the work that you perform in 12 cases like this, where you're asked to evaluate a 13 patient where there's a claim of medical negligence, 14 is on behalf of the plaintiff? 15 A. That's correct. 16 Q. And you are being compensated by Mr. Hirshman for 17 your time here today? 18 A. Correct. 19 Q. And also for the time you spent reviewing the 20 records and meeting with and evaluating Mr. Ray? 21 A. That's correct. 22 Q. Those are all the questions I have, Doctor. I 23 appreciate your time. 24 A. Thank you, sir. 25 MR. HIRSHMAN: Off camera for one 55 1 moment, please. 2 VIDEOTAPE OPERATOR: We're off the 3 record. 4 - - - - 5 (Off the record.) 6 - - - - 7 VIDEOTAPE OPERATOR: We're back on the 8 record. 9 - - - - 10 RE-DIRECT EXAMINATION OF ROBERT B. ANCELL, Ph.D. 11 BY MR. HIRSHMAN: 12 Q. Dr. Ancell, I have only a few further questions. 13 You are involved in the process by which 14 workers attempt to enter the work force on a daily 15 basis? 16 A. Correct. 17 Q. And you're involved in the process whereby workers 18 who have become disabled are attempting to enter the 19 work force on a daily basis? 20 A. Correct. 21 Q. And you're familiar with the types of letters that 22 proposed workers, or people who want to work, get 23 when they are rejected when those workers have 24 disabilities? 25 A. I am familiar with the approaches that are taken in 56 1 that regard, yes. 2 Q. It's a pretty unusual thing to get a letter if 3 you're a disabled person seeking a job saying that 4 we don't want you because you're disabled, isn't it, 5 Doctor? 6 A. I've never seen -- 7 MR. WILT: Objection. 8 A. I'm sorry. I've never seen a letter like that. 9 Q. In light of the objection, I will rephrase the 10 question. 11 Have you ever seen a letter like that sent to a 12 worker that is disabled, a letter saying we don't 13 want you because of your disability? 14 MR. WILT: Objection. 15 A. Not in 34 years, no. 16 MR. HIRSHMAN: No further questions. 17 MR. WILT: I don't have anything 18 further. Thank you. 19 VIDEOTAPE OPERATOR: Doctor, you do 20 have the right to read this transcript and 21 review the videotape, if you so wish, or you 22 can waive such rights. 23 THE WITNESS: I'll waive my rights. 24 VIDEOTAPE OPERATOR: Thank you very 25 much. This concludes the deposition. 57 1 - - - - 2 (Thereupon, a discussion was had off 3 the record.) 4 - - - - 5 MR. HIRSHMAN: Let's do something on 6 the record that's not on the camera. 7 MR. WILT: All right. 8 MR. HIRSHMAN: Let's see if we can get 9 a waiver of filing. Do you have any problem 10 with that? 11 MR. WILT: You mean the video? 12 MR. HIRSHMAN: Correct. 13 MR. WILT: No, I'm not going to fight 14 you on that. 15 MR. HIRSHMAN: Okay. 16 MR. WILT: Honestly, I do not have 17 anything scheduled regarding the videotape, but 18 if for some reason that should come up and I 19 need a waiver requirement, I take it you're not 20 going to object to filing of the video? 21 MR. HIRSHMAN: No objection to any 22 filing. Mutual -- we'll mutually agree to not 23 object to any filing requirements. 24 MR. WILT: That's fine. 25 MR. HIRSHMAN: If there's a surprise 58 1 witness I'm not aware of, I'm not going to 2 waive that objection. 3 MR. WILT: No, I understand that. 4 Thanks. 5 (Signature waived.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 1 2 C E R T I F I C A T E 3 The State of Ohio, ) SS: 4 County of Cuyahoga.) 5 6 I, Laura L. Ware, a Notary Public within and for the State of Ohio, do hereby certify that the 7 within named witness, ROBERT B. ANCELL, Ph.D., was by me first duly sworn to testify the truth, the 8 whole truth, and nothing but the truth in the cause aforesaid; that the testimony then given was reduced 9 by me to stenotypy in the presence of said witness, subsequently transcribed into typewriting under my 10 direction, and that the foregoing is a true and correct transcript of the testimony so given as 11 aforesaid. 12 I do further certify that this deposition was taken at the time and place as specified in the 13 foregoing caption, and that I am not a relative, counsel or attorney of either party or otherwise 14 interested in the outcome of this action. 15 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, 16 Ohio, this 25th day of April, 2001. 17 18 _________________________________________________ Laura L. Ware, Ware Reporting Service 19 21860 Crossbeam Lane, Rocky River, Ohio 44116 My commission expires May 17, 2003. 20 21 22 23 24 25