1 IN THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO DAVID L. RAY, et al., Plaintiffs, vs. Case No. 395119 KIM STEARNS, M.D., et al., Defendants. Deposition of JOHN F. BURKE, JR., Ph.D., taken before me, Michele E. Eddy, a Registered Professional Reporter and Notary Public in and for the State of Ohio, at the offices of Linton & Hirshman, 700 West St. Clair Avenue, Suite 300, Cleveland, Ohio, on Tuesday, the 17th day of April, 2001, at 2:45 p.m. - - - - - 2 1 APPEARANCES: 2 3 On behalf of the Plaintiffs: 4 Linton & Hirshman, by 5 TOBIAS J. HIRSHMAN, ESQ. 6 700 West St. Clair Avenue 7 Suite 300 8 Cleveland, Ohio 44113 9 (216) 781-2811 10 11 On behalf of the Defendants: 12 Buckingham, Doolittle & 13 Burroughs, by 14 DAVID KRAUSE, ESQ. 15 1700 One Cleveland Center 16 Cleveland, Ohio 44114 17 (216) 621-5300 18 ---- 19 20 21 22 23 24 25 3 1 JOHN F. BURKE, JR., Ph.D, of lawful age, 2 called for examination as provided by the Ohio 3 Rules of Civil Procedure, being by me first 4 duly sworn, as hereinafter certified, deposed 5 and said as follows: 6 EXAMINATION OF JOHN F. BURKE, JR., Ph.D. 7 BY MR. KRAUSE: 8 Q. Good afternoon, Dr. Burke. 9 A. Good afternoon, Mr. Krause. 10 Q. That was going to be my first 11 thing. You know my name is David Krause. I 12 represent Dr. Stearns in some litigation 13 pending in the Cuyahoga Court of Common Pleas. 14 You have been identified as an expert for the 15 plaintiff in that case captioned Ray versus 16 Stearns. Is that correct? 17 A. I believe so, yes, sir. 18 Q. I'm pretty sure I don't have to do 19 this, but I'm just going to explain the general 20 ground rules for a deposition. 21 A. Always a good idea. 22 Q. Answer the questions orally. 23 Shakes of the head are difficult for the court 24 reporter to take down. You've probably done 25 more of these than I have. 4 1 Have you ever had your deposition 2 taken before? 3 A. I have. 4 Q. Approximately how many times? 5 A. 1500. 6 Q. So you have done quite a few more 7 of these than I have. 8 MR. HIRSHMAN: We all have a long 9 way to go to catch up. 10 Q. Can you state and spell your name 11 for the record? 12 A. My name is John F. Burke, Jr. 13 Burke is spelled B U R K E. 14 Q. And your age and date of birth, 15 sir? 16 A. 64, 3-25-37. 17 Q. And where do you currently reside? 18 A. 2916 Fairmont Boulevard, Cleveland 19 Heights, Ohio. 20 Q. Is that a Boston accent I just 21 picked up? 22 A. It's a Boston accent. It's 23 difficult to overcome your youth. 24 Q. Your current professional 25 occupation is? 5 1 A. Economist. 2 Q. How long have you been engaged 3 professionally as an economist? 4 A. 40 years. 5 Q. Why don't you just take me 6 briefly -- I don't need to know what you got on 7 your spelling test in third grade -- but 8 briefly through your educational background. 9 A. High school in the Boston, 10 Massachusetts area, or also primary school. 11 Right after high school I went into the United 12 States Navy, got a very good education in the 13 Navy. 14 After the Navy I went to Boston 15 College, got out of BC in 1961 with a degree in 16 economics. I then attended the University of 17 Notre Dame in South Bend, Indiana. I was 18 awarded a master's degree from Notre Dame in 19 1967. 20 Excuse me, 1963 was the Master's 21 degree. Ph.D also from Notre Dame was in 67. 22 Q. Since that time -- and I don't 23 know, you're going to educate me to some 24 extent -- is there any sort of continuing 25 education which economists undergo? 6 1 A. Well, from that point on I was a 2 professor of economics. I was the one who was 3 doing the educating. However, the teacher 4 typically learns more than the students, so I 5 have been learning for the last 30 odd years, 6 and I'm still learning. 7 Q. During your stay at Boston College 8 or Notre Dame, were you employed as an 9 economist with any companies or in any 10 capacity? 11 A. Well, at Notre Dame I was employed 12 as an economist. I was a TA. I taught 13 economics. And I also worked on a Social 14 Security project; it was research in economics. 15 But at Boston College, my undergraduate school, 16 my job was a cab driver, a bartender, a house 17 painter and a bill collector. 18 Q. That's a different sort of 19 economics, is it not? 20 A. Yes, it is. Yes, it is. But the 21 standard jobs that a college student has. 22 Q. How about after 1967 when you 23 obtained your Ph.D., where were you first 24 employed? 25 A. At that time when I got it, I was 7 1 teaching at Eastern Illinois University in 2 Charleston, Illinois. Right after that I moved 3 to Cleveland, Ohio, accepted a job at Cleveland 4 State University. I taught there for the next 5 27 years until 1994, at which time I retired 6 from teaching at CSU with 36 years of public 7 service and was promoted to associate professor 8 emeritus. 9 I was out of the classroom for four 10 or five years but I am now back in the 11 classroom. I am an adjunct professor of 12 economics at John Carroll University. 13 And I brought a copy of my resume 14 for you. 15 Q. That was my next question. You're 16 filling in some things. 17 A. Well, I haven't updated my resume 18 in about ten years, but there's only a couple 19 of significant events. One is the retirement 20 from Cleveland State. The other one is the 21 promotion to associate professor. The other 22 one is my adjunct professorship at John 23 Carroll. And this other one is this ten 24 children of mine. 25 Q. Ten children. 8 1 A. Well, this is the modern American 2 family, so it is a merger of two families and 3 then a subsequent expansion. However, I 4 educated all of them, so I take credit for all 5 of them. 6 Q. I see you have a fairly extensive 7 list of articles, testimony prepared for 8 legislative bodies, presented papers, selected 9 reports and selected cases, and then another 10 section labeled other professional activities. 11 I'm reading those topics from your curriculum 12 vitae. 13 A. Yes, sir. 14 Q. Is there anything that you would 15 add or you feel would be appropriate to add in 16 any of those sections? 17 A. I've done more of the same. I 18 continue to speak at a lot of continuing legal 19 education seminars. I have published a couple 20 of articles, not many, since I retired. 21 I was appointed to a committee of 22 the Supreme Court of the State of Ohio. 23 Q. What committee is that? 24 A. I'm on the Ohio Judicial Family 25 Network Committee. 9 1 When I was appointed I asked the 2 chief justice if I was being appointed because 3 of my general fame and notoriety and esteem. 4 He said, no, this is a committee exclusively 5 made of spouses of judges desperate for a few 6 males. 7 Q. May I? Now may be a good time just 8 to take a quick look at your file. 9 MR. KRAUSE: Go off the record. 10 (Discussion off the record.) 11 MR. KRAUSE: We can go back on the 12 record. 13 Q. I see in your file there's a packet 14 that's rubber banded with a letter from 15 Mr. Hirshman to your attention dated April 16 16th, 2001. 17 Have you had an opportunity to 18 review these records prior to today's 19 deposition? 20 A. Not really. I glanced at them. 21 But I didn't review them in any detail. 22 Q. There are additional -- I don't 23 necessarily want to call them employment 24 records. They seem to be payroll records from 25 Rossborough Manufacturing in your file that 10 1 were forwarded to you January 19th, 2001 as 2 well as some W-2s. 3 Have you had an opportunity to 4 review those? 5 A. Yes, sir. 6 Q. Do those form the basis of the 7 opinions you intend to render at trial in this 8 matter? 9 A. They're one of the elements, yes, 10 sir. 11 Q. Of what significance is the copy of 12 the operative note from November 9th of 1998 13 which Mr. Hirshman forwarded to you? 14 A. May I see that, please? 15 Q. Certainly. 16 If at any time I'm holding onto 17 something and asking you questions, just speak 18 up and I'll be more than happy to -- 19 A. This document alone by itself 20 played no role in what I did. However, I 21 needed somebody to tell me what Mr. Ray's 22 situation was. 23 Q. When you say what his situation 24 was, can you explain that a little bit further? 25 A. Yes. Just let me pick out 11 1 something here on this document that you just 2 referred to. It says tensor fascia LATA graft. 3 I have no idea what that is. I have absolutely 4 no idea what it is. 5 Q. Okay. 6 A. So I need somebody -- I'm not a 7 medical doctor, so I need somebody in layman's 8 terms to say what does all this mean, what does 9 all the implications of this mean. 10 Mr. Hirshman explained the 11 implications of all of this in terms of why 12 Mr. Ray was unable to do the job that he 13 previously had. So in support of that, 14 Mr. Hirshman sent me this information. But I 15 need somebody to interpret this. 16 Q. Well, what is your understanding of 17 Mr -- I keep wanting to say Ray Stearns, but 18 it's not -- Mr. Ray's condition? 19 A. Is that he has an injured arm -- 20 and, again, this is not a medical definition -- 21 but he is unable to, using his own muscles in 22 his arms, to extend his hand. So his hand is 23 kind of in a permanent clutched state. It can 24 be extended if it is pushed out with the other 25 hand, but it can't be extended -- the muscle 12 1 power isn't there to flex it like you and I 2 would flex. 3 Q. And that understanding that you 4 just described to me, that's based on your 5 conversations with Mr. Hirshman? 6 A. Absolutely, yes, sir. 7 Q. Completely or does it involve 8 some -- 9 A. I read this, but as I said I don't 10 understand this. I'm not a medical doctor. I 11 don't understand what a Bovie cautery is. I 12 don't know what a number five Effy bond suture 13 is. I don't know what a bicipital tubercle 14 that was identified -- 15 Q. Without -- from the operative note, 16 are you able to discern any limitations -- let 17 me finish my question -- without Mr. Hirshman's 18 input? 19 A. Not me. I mean, I guess I could go 20 have this interpreted, but I need to either go 21 to a dictionary and spend a couple of hours 22 looking up all of these words or I would bring 23 it to a doctor friend of mine and say what does 24 this mean. But I would need somebody else -- 25 Q. And you didn't do that in this 13 1 case? 2 A. I did not. The somebody else I 3 went to was Mr. Hirshman. And, again, I'm not 4 going to testify on that. That's not my area. 5 My medical training ended with 12 weeks of 6 hospital corps school when I was a Navy medic, 7 and we never got into those things. 8 Q. But what Mr. Hirshman told you and 9 as well as the contents of the operative note 10 as interpreted to you, if that word is -- that 11 may not be exactly the word -- from 12 Mr. Hirshman forms somewhat of your opinions in 13 this case? 14 A. When a person is not dead -- when a 15 person is dead, I know that they can't do the 16 job. When a person has been injured, I 17 need -- I mean when I say I -- economists need 18 help from somebody else to say is there a 19 residual earning capacity; can they do the job 20 they used to do? 21 It really doesn't make any 22 difference to me why they can't do it. But I'm 23 just kind of curious to know why they can't do 24 it, and do they have a residual earning 25 capacity. I need somebody professional to help 14 1 me out in that regard. 2 Now, Mr. Hirshman gave me some of 3 those answers, but I also -- I did not rely 4 upon him. I heard it from him, but I did not 5 rely upon him. I did rely upon Robert Ancell. 6 Q. Who is Robert Ancell? 7 A. He's a rehabilitation counselor or 8 rehabilitation expert. 9 Q. And in what way did you rely on 10 Mr. Ancell? 11 A. He said that Mr. Ray could not do 12 the prior job and that Mr. Ray would be limited 13 to jobs that pay around $8 an hour. 14 Q. And I have -- I may have missed it, 15 but I'll give your file back to you. Could you 16 pull out of there for me anything directed to 17 you regarding Mr. Ancell? 18 A. (Indicating.) 19 Q. I had a feeling you would. 20 A. As I say, economists, not just me, 21 none of us have trained in vocational 22 rehabilitation, so we need somebody else to 23 assist us in that area. 24 Q. Okay. So the opinions that you 25 intend to proffer at trial and the opinions you 15 1 express in your report as well as here today in 2 deposition are based on the report that you 3 received from Mr. Ancell? 4 A. In part, yes, sir. 5 Q. In part. 6 Independent of Mr. Ancell's report 7 and any input from Mr. Hirshman, are you able 8 to determine the causes of any lost earning 9 capacity or capacity or any residual 10 employability? 11 A. The cause? No, I'm not able to 12 determine the cause. I am not an expert in 13 cause. I will not be testifying about cause. 14 I don't mean this in a cold manner, 15 but I'm not interested in the cause. If 16 Mr. Ray lost his job because he was 17 discriminated against or if he lost his job 18 because he died or if he lost his job because 19 he was injured, if he lost his job because a 20 contract was terminated, or if he lost his job 21 for whatever reason, for a thousand different 22 causes, that is not a concern to the economist. 23 I can still calculate his earning capacity in 24 that job. 25 Q. Okay. 16 1 A. The second part of your question 2 dealt not with cause but with the residual 3 earning capacity. I need help from somebody 4 else on the residual earning capacity. So I 5 can determine the original earning capacity and 6 I'm not concerned with the cause of why he lost 7 it. 8 As a matter of fact I would say 9 that if he had kept his original job, this is 10 how much he would have made. And if he lost 11 it, then this is what he lost. If he lost his 12 job, this is the income he lost. But I'm not 13 concerned with why he lost it. And then again 14 I -- 15 Q. So is it -- is it safe to say that 16 as part of your calculations and 17 computations -- I don't know necessarily what 18 the right term is -- 19 A. That's fine; that's a good word. 20 Q. As a part of your calculations or 21 determination of any residual earning capacity 22 from Mr. Ray, you rely solely on others, Dr. 23 Ancell or Mr. Hirshman or whoever, but other 24 sources? 25 A. For the starting point. For any 17 1 economist to make an evaluation of earning 2 capacity, there's a lot of information you have 3 to know, but eventually it boils down to 4 knowing four things. If you know how long 5 somebody is going to be an active member of the 6 work force, if you know how much money they're 7 making at their current job or with their 8 current capacity, if you can make a judgment on 9 what's going to happen to that capacity in the 10 future, and, lastly, if you can make a judgment 11 about interest rates, then you can answer the 12 question of what is their earning capacity. 13 I can do number one by myself. I 14 can do number three by myself; and I can do 15 number four by myself. 16 I need Robert Ancell or somebody 17 else similarly qualified to tell me about 18 number two, what is their current earning 19 capacity in their current situation. 20 Q. So any information -- or strike 21 that. 22 Any information in your report 23 regarding the current earning capacity or 24 future earning capacity of Mr. Ray would be 25 based on information you obtained from 18 1 Mr. Ancell or some other source, is that 2 correct? 3 A. In this case that is what I did, 4 yes, sir. 5 If the person, if the injured party 6 is in another job already, they've left job A 7 and have gone to job B, then I can figure out 8 what job B is. 9 Q. Right. 10 A. But in this case I relied -- and 11 Mr. Ray had job B, so I knew what it was. 12 Q. All right. 13 A. I had seen a W-2. I have a W-2 in 14 my file from the alternative job. And in fact 15 I relied upon and I hope I footnoted 16 Mr. Ancell's report -- Dr. Ancell's report. 17 Yes, I do. On page four of my report, I source 18 Robert Ancell. 19 Q. I can see it. 20 A. Do you see it? 21 Q. Yes. 22 Are there any other sources that 23 you relied upon in determining the residual 24 earning capacity of Mr. Ray? 25 A. Yes, sir. I relied upon a couple 19 1 of other sources that I footnote on page two in 2 terms of life expectancy and work life 3 expectancy. 4 Q. And, again, as you stated 5 previously, that information is what you use 6 irregardless of cause of the change in the 7 working condition or the change in the 8 employment? 9 A. Right. The cause, who did what to 10 who, who's right or wrong, that's not an issue 11 that I deal with in most cases. Sometimes I do 12 deal with it when you get into statistical 13 evaluations, especially discrimination cases. 14 Q. But you didn't do that in this 15 case? 16 A. No. I am not going to be a cause 17 expert. I'm going to be a damages expert. 18 Q. I believe you've indicated 19 previously that you have been deposed 20 approximately 1500 times. Is that -- 21 A. That's a wild guess. I've been 22 doing this kind of work for 33 years. I didn't 23 keep any records for the first 15 to 20 years. 24 Q. How about testimony at trial? 25 A. Probably another thousand. I tell 20 1 people that I testified about 2500 times. As a 2 result I have told the truth more times than an 3 Irishman should have to. 4 Q. Included in your testimony in 5 trial, do you include videotaped depositions in 6 your deposition count or with your trial 7 testimony count, or do those -- 8 A. It all depends on what it is. 9 Q. All, based on 2500, if you added 10 the number of times that you -- 11 A. It's all testimony. It's all 12 testimony, sir. Again, it's a ballpark figure. 13 I now conform to that federal rule, but that 14 federal rule has only been in existence for 15 five or ten years, so before that I didn't keep 16 any records on it. 17 Q. Okay. About how many reports do 18 you prepare a year? 19 A. Five or 600. 20 Q. About how many times do you have 21 your deposition taken per year within the last 22 five years? 23 A. Last year -- what was last year? I 24 think last year I testified 96 times. And I 25 don't remember the breakdown. The year before 21 1 that it was 102 times. That was 51 and 51. 2 Q. Meaning 51 depositions and 51 -- 3 A. Yes. And some of them, of course, 4 would be in the same case. And I don't 5 remember the breakout last year. 6 Q. How much do you charge to prepare a 7 report? 8 A. To prepare a report, typically I 9 charge $2500. 10 Q. Is that based on some sort of 11 time -- 12 A. No. 13 Q. -- or is that a flat fee? 14 A. Flat fee. 15 I send out a standard letter, which 16 I hope I sent out in this case. 17 Q. Maybe Mr. Hirshman is hoping you 18 didn't. 19 MR. HIRSHMAN: There's nothing to 20 hide. 21 A. When a lawyer calls me -- 22 MR. KRAUSE: No, I didn't mean 23 that. 24 A. When a lawyer calls me, if it's a 25 case involving a worker, a housewife or a 22 1 child, they get back this letter. It's a 2 standard letter. 3 If you were to call me on a case, 4 when Orville calls me on a case, this is the 5 letter you get. And it says my fee for 6 testimony is going to be a thousand dollars and 7 the fee for preparation is usually around 8 $2500. 9 Q. So deposition testimony is about a 10 thousand, or live testimony is about a 11 thousand, either/or? 12 A. Yes. 13 Q. And reports are about 2500. 14 I don't think I need to -- how long 15 have you been employed with Burke, Rosen and 16 Associates? 17 A. A long time. 18 Harvey and I incorporated that 19 company in the spring of 1973. It's 28 years. 20 My marriage to Harvey and his 21 marriage to me lasted longer than any of our 22 other marriages. 23 Q. And in what capacity does Burke, 24 Rosen and Associates operate? 25 A. Economist consultants. We're 23 1 economists. We do whatever assignments come in 2 that we're qualified to do in the economic 3 realm. 4 Q. Of the five to 600 reports and -- 5 A. Or equivalent reports. 6 Q. Meaning? 7 A. Well, some cases are big deals in 8 the sense that you work on them for several 9 years. One of the cases we're involved in is 10 the Proctor and Gamble devil case where they're 11 being sued by Amway Corporation over the man on 12 the moon symbol. We've been working on that 13 case for about four years now. 14 If we were to bill $100,000 this 15 year for that case and if I were to bill 2500 16 for this case, the Proctor and Gamble case 17 would be equivalent to 40 of these cases. 18 So we bill the equivalent of -- 600 19 equivalent cases every year. But some of them 20 aren't a big deal. A lawyer will call up and 21 say, John, what's the life expectancy of a 22 64-year old white male. I'll say it's 17 23 years. He'll say, okay, will you write that up 24 and send it to me? I'll say sure. He says 25 what's it going to cost. I'll say I'll write 24 1 you a letter, it's no big deal. He'll say, no, 2 I need a bill. So I'll send him a bill for 25 3 or 50 bucks. You have to do an equivalent of 4 those to make 50 of these. It's 550 to 600. 5 Q. How many actual reports do you 6 prepare? How many reports like this per year? 7 A. I haven't counted them. I mean, I 8 can count them, but I haven't counted them. 9 But I would say at the end of the year we would 10 have done the equivalent of five to 600 cases. 11 Q. What's the breakdown between 12 representing plaintiffs and defendants? 13 A. It varies from year to year. On a 14 case by case basis, it's mostly plaintiffs' 15 attorneys that's calling. On a work effort 16 basis -- 17 Q. I didn't catch that last -- 18 A. On a work effort basis, if you do 19 one of these cases -- if you do one of these 20 cases and one Proctor and Gamble case, that's 21 each one, right? But the Proctor and Gamble 22 case was 100,000. This was -- 23 Q. Right. 24 A. So that's 40 to one. 25 Q. As far as a percentage, though, of 25 1 your customers or clients -- 2 A. The biggest case I had last year, 3 the biggest case I had last year was a defense 4 case for Buckingham, Doolittle. 5 MR. HIRSHMAN: Who are they? 6 A. But most of the time when my phone 7 rings it's a plaintiff's attorney that's 8 calling. 9 Q. What's the percentage? If you 10 broke down -- if you broke down your customers 11 or clients or whatever you want to call them 12 into plaintiffs' attorneys or defense 13 attorneys, what would the percentage be? 14 A. Not counting judges, who also call. 15 Q. Right. 16 A. It's probably 60/40 plaintiffs' 17 work. Although in the personal injury/wrongful 18 death area, I would say it's 80 or 90 percent 19 plaintiffs calling. 20 Q. In personal injury do you include 21 medical malpractice cases such as this? 22 A. Somebody's been injured. Again, 23 I'm not a cause guy. 24 Q. Right. 25 A. I don't keep -- 26 1 Q. What I'm saying is in your 2 estimate, are you lumping in any medical 3 malpractice cases? 4 A. Is this considered a medical 5 malpractice case? 6 Q. I believe it is. 7 MR. KRAUSE: Mr. Hirshman? 8 A. Again I'm not the lawyer. To me it 9 doesn't make any difference. But this I would 10 say is a personal injury case. Somebody's been 11 injured. 12 Q. This is a personal injury case. 13 MR. HIRSHMAN: Just so I 14 understand, you agree with me that this is a 15 medical malpractice situation, is that what you 16 just said? 17 MR. KRAUSE: Excuse me. No, I told 18 him to ask you what it was. 19 MR. HIRSHMAN: It's just one of 20 those stipulations I would like to get. 21 MR. KRAUSE: I'm sure it is. 22 A. By the way, in terms of whether I 23 work for the defense or the plaintiff, I might 24 need some help from you because when I started 25 on that devil case five years ago, Proctor and 27 1 Gamble was suing Amway. We did a lot of work 2 on that. We ran all kinds of statistical 3 analysis on Tide and Ivory and all their other 4 products. That case was thrown out. 5 Then Amway sued Proctor and Gamble. 6 So now we're working for the defense. 7 But what are we doing? We're doing 8 statistical analysis on Tide and Ivory. We're 9 doing the same work, but now -- 10 Q. You're just doing the opposite 11 side. 12 A. The defense side. The economics 13 hasn't changed. The lawyers have changed. I 14 mean the lawyers' sides have changed; they're 15 the same lawyers. But the economics didn't 16 change. 17 Q. As far as personal injury cases, 18 though, as far as that portion of your 19 clientele, the bulk of the work you do is for 20 plaintiffs' attorneys? 21 A. Overwhelming, yes, sir. 22 Q. I would like to -- I have an extra 23 copy of your report. I don't know if you 24 necessarily need it. Let's mark it as an 25 exhibit. 28 1 - - - - - 2 (Thereupon, Defendants' Deposition 3 Exhibit 1 was marked for purposes of 4 identification.) 5 - - - - - 6 MR. KRAUSE: Back on the record. 7 Q. I've handed you a copy of your 8 report. Is that a fair and accurate copy of 9 the report you've given to Mr. Hirshman in this 10 matter? 11 A. Yes, sir. It is a one-page cover 12 letter. It's a nine-page report. And then 13 there's a long statistical appendix attached to 14 it. 15 Q. About? 16 A. 40-odd pages. 17 Q. 45 pages? 18 A. You handed me 46 pages, yes, sir. 19 Q. I'm going to page two of the actual 20 report. 21 A. Yes, sir. 22 Q. And I would just like to go through 23 some of these calculations and numbers with 24 you. 25 A. Yes, sir. 29 1 Q. The information about the date of 2 birth and the date of injury, that's all 3 garnered from what source? 4 A. Mr. Hirshman. 5 Q. Okay. And from the date of birth 6 you're able to calculate his age on the date of 7 injury? 8 A. Yes, sir. 9 Q. How about work life expectancy from 10 9-23-1998? 11 A. That's a statistical calculation 12 from the reference source that I cite there. 13 Q. What is a discount rate? 14 A. It's an interest rate. 15 Q. You're going to have to describe it 16 for me a little deeper than that if you can. 17 A. Yes, sir. I discount rate is an 18 interest rate. And an interest rate is a 19 payment that a bank or an institution is going 20 to pay you if you lend them money. So an 21 interest rate is the rate of return on a debt 22 instrument. 23 For purposes that we're talking 24 about here, that interest rate is used to 25 calculate the present value of a future stream 30 1 of wages and fringe benefits. 2 So if, for example, I owe you $10 3 five years from now and I want to get debt free 4 today, I should not give you $10 because you're 5 going to take my $10 and put it in a bank and 6 earn five years' worth of interest. 7 So I should offer you a smaller sum 8 which takes into consideration that you're 9 going to earn interest. 10 So if you could earn interest at 11 five percent for ten years and I owe you $10, I 12 should offer you today the sum of $6.14. 13 Because if you take $6.14 down to the bank, put 14 it in there, the bank pays you five percent per 15 annum, it will grow ten bucks in five years. 16 Q. So the discount rate is a way -- 17 A. It is an interest rate. 18 Q. And you used a discount rate in 19 this case? 20 A. I did. 21 Q. And you use it to calculate the 22 value -- or what do you use it to calculate in 23 this case? 24 A. Just what I said. I used it to 25 calculate the amount of money you need today to 31 1 pay off a future debt. So if I owed you $10 2 ten years from now at five percent interest, I 3 should not give you $10 today. I should give 4 you $6.14. Because if you have $6.14 today, 5 put it in a bank, then the bank pays you five 6 percent interest per year for ten years, then 7 it will grow to be the $10. 8 So if Mr. Ray would have a earning 9 capacity ten years from now of $10 or 1,000 or 10 10 million, then we should not attempt to give 11 Mr. Ray $10 today, 2001, to make up for the 12 salary he could have earned in 2001. We should 13 offer him a smaller sum. That smaller sum if 14 we're trying to replace $10 is $6.14. If we're 15 trying to replace $100, it's $61.40, so on and 16 so forth. 17 So for each and every year in the 18 future that Mr. Ray has an earning capacity, I 19 reduced it to present value today. And to do 20 that you use a rate of interest. 21 Q. Continuing on page two. 22 A. How did you get discount rate on 23 page two? 24 Q. I didn't get discount rate on page 25 two. 32 1 MR. HIRSHMAN: He knows more than 2 he's letting on. That's all. 3 MR. KRAUSE: I don't know about all 4 that. I might know a couple words. 5 Q. And the life -- the life expectancy 6 is based on statistical data, correct? 7 A. Yes, sir. 8 Q. And the work life expectancy from 9 3-01-2001 is based on this statistical data? 10 A. Yes, sir. 11 Q. That's obviously not a guarantee 12 that you will live that long or will work that 13 long or anything like that, correct? 14 A. No guarantees in the future, none. 15 Q. Is it an expression that it's 16 probable that he will work or live that long, 17 in your opinion? 18 A. Yes, sir. 19 Q. Are there any other factors that 20 you would use in determining the probable life 21 expectancy and the related calculations that 22 you make regarding the working capacity? Is 23 there any other information that you use in 24 making that determination? 25 A. There's no other information that I 33 1 use when I'm left to my own resources. 2 However, if another expert, say a medical 3 doctor, would testify that a person has 4 terminal cancer and is guaranteed to be dead 5 within three months, I would take that into 6 consideration. 7 Q. What if a person's overweight, in 8 your experience does that decrease life 9 expectancy? 10 A. Is that a personal question? 11 Q. I could ask the same question of 12 myself. 13 A. The statistics that I use include 14 overweight people because they are statistics 15 for all Americans. And the typical American is 16 overweight. 17 Q. I understand they include that as a 18 statistic of the whole population. But it's 19 not limited to people of a certain -- let me 20 ask it this way. Do you have a chart that you 21 go down and it says, you know, this person is 22 six feet tall and weighs X amount and it has a 23 strata of the population and statistics based 24 on that? 25 A. I do not. My statistics are based 34 1 upon four considerations. First of all, they 2 are all Americans. 3 Q. Okay. 4 A. Secondly, it's subdivided by racial 5 characteristic. It is subdivided by a sexual 6 characteristic. It is subdivided by a age 7 characteristic. 8 Q. Other than that there are no other 9 factors that are taken into consideration in 10 projecting -- 11 A. That's it. The report that I cite, 12 down at the bottom of that page, those are the 13 four factors. 14 Q. Which is the basis for all of your 15 opinions? 16 A. Yes, sir. 17 Q. Not all of your opinions, but all 18 of your opinions as to work and life 19 expectancy? 20 A. As to life expectancy. Work 21 life -- 22 Q. Do they represent a portion of your 23 opinions expressed as to the work -- are you 24 saying work life expectancy and I'm just 25 missing it? 35 1 A. No, I'm saying life expectancy. 2 And you can see the way I set up the report, 3 for one thing I cite life expectancy, for 4 another thing I cite work life expectancy. 5 Life expectancy and work life expectancy are 6 not the same thing. 7 Q. I understand that. But work life 8 expectancy is garnered from the life expectancy 9 of the individual? 10 A. That's one component. 11 Q. Okay. What are the other 12 components? 13 A. Disability. 14 Q. Okay. 15 A. Accession to the labor force. 16 Accession to the labor force. If you have a 17 work life expectancy, you've got to be a member 18 of the labor force. I'm a father of a 19 nine-year old. He's not a member of the labor 20 force. So you've got to be a member of the 21 labor force. 22 And work life expectancy is then 23 affected by death, disability, retirement, 24 quits and accessions. 25 Q. Was there any -- was disability an 36 1 issue in your calculations of work life 2 expectancy in this matter? 3 A. No, but disabilities are in the 4 statistics. See, there is one reason to take 5 you out of the life expectancy statistics, and 6 that one reason is you died. 7 There are four possible reasons to 8 take you out of the work force. One is death. 9 One is disability. One is quits. One is 10 retirement. And then in the quits there are 11 all possible reasons that you quit. 12 Q. I see. 13 A. And so the statistic that you look 14 at has already included that. 15 Q. Okay. Is the determination of work 16 life expectancy, you just listed four factors, 17 is work life expectancy -- does that 18 calculation take into account the profession or 19 employment -- not the employment -- the 20 actual -- what the person does for a living? 21 A. No. It's all of us Americans. It 22 is segregated by race, by age, by educational 23 attainment. I think those are the three 24 categories. 25 Q. I have moved on to page three of 37 1 your summary sheet. 2 You have a, it's a roman numeral 3 one, not an I. It says loss of future 4 pre-injury earning income. 5 A. Yes, sir. 6 Q. Could you just explain for me what 7 that determines, what it is and what it 8 determines? 9 A. It determines the present value of 10 the future earning capacity; and the 11 demarcation on the future was the date of 12 injury; of the wages and fringe benefits that a 13 man like Mr. Ray would have been able to earn 14 had he continued working in his pre-injury job. 15 Q. What does fringe benefits include? 16 A. For the typical worker they 17 include -- 18 Q. Is that like stealing pencils and 19 pens at work? I imagine there's more to it 20 than that. 21 A. That's an extra. 22 Q. That's an extra, all right. 23 A. That's the xerox and the stamp 24 machine and all that sort of stuff. 25 Q. What do fringe benefits stand for? 38 1 A. These take into account the fringe 2 benefits that don't show up in your paycheck. 3 Some fringe benefits show up in your paycheck, 4 paid holidays, paid vacations. This would be 5 contributions by an employer to a trust fund, 6 to a medical plan, to a pension plan, to a 7 401-K, to retirement, things like that. 8 Q. If Mr. Ray was covered under his 9 wife's insurance, would that -- what sort of 10 impact would that have on your calculation of 11 fringe benefits? 12 A. None. 13 Q. Can you explain that for me? 14 A. Sure. I'm looking at him. I'm not 15 looking at his wife. I'm looking at him. Or 16 if I was looking at his wife, I would be 17 looking at her and I wouldn't be looking at 18 him. And I'm looking at his capacity. And 19 part of his -- 20 Q. Not what -- 21 A. Not his actual. I'm looking at his 22 capacity. Out of his capacity is the capacity 23 to have unemployment -- I mean, excuse me, to 24 have a medical plan. 25 Q. And you add in your calculations 39 1 the total capacity without determining whether 2 there was an actual loss of that capacity? 3 A. Yes, sir. No, I determine if 4 there's a loss of the capacity. I can't 5 determine -- I have a more difficult time 6 determining actual loss. 7 Q. Okay. And these age groups under, 8 I'm still on page three, under A, B, those are 9 different calculations based on the projected 10 work life expectancy, is that -- 11 A. No, one of them is based on work 12 life expectancy, the one labeled work life 13 expectancy. 14 MR. HIRSHMAN: C. 15 A. It's based upon that. 16 The other two are just reasonable 17 points in time to look at. 18 Q. Okay. 19 A. At age 65 is a mora in our society 20 that says normal retirement is age 65. But 21 given Mr. Ray's date of birth, I also looked at 22 the time that he would qualify for Social 23 Security, and that would be age 66 years and 24 four months. 25 Q. Let's move now down to 40 1 offsetting -- Roman numeral II, offsetting 2 future post injury earning income. What does 3 that mean? 4 A. That means the income in his 5 current situation. 6 Q. Is this the calculation that -- and 7 you'll excuse me if I misstate it, please 8 correct me -- is this portion the numbers that 9 account for that he's still able to work in 10 some capacity, whatever that capacity is, and 11 then you subtract that from the -- from what 12 the calculation is had he continued in the 13 previous employment? 14 A. Yes, sir. And you stated it very 15 artfully. 16 Q. How about Roman numeral number III, 17 the replacement cost to services? 18 A. Roman numeral number III is the 19 value of services around the house. I have 20 assumed that those are ten hours a week. 21 Q. I wish I could get away with that. 22 Could I get a report to send to my wife? 23 A. Well, again, it's an average. And 24 assuming that you do ten, then between the two 25 of us -- assuming you do 20, which I just 41 1 inferred from your answer, then between the two 2 of us we're average. 3 Q. I think my wife would probably put 4 it more at two. 5 A. Oh. 6 Q. So the replacement cost of services 7 is for personal services around the house? 8 A. Services around the house. I'm not 9 sure what you mean by personal services. 10 Q. I appreciate that. 11 Services such as household chores? 12 A. Yes, cutting the grass, shoveling 13 the snow, taking out the garbage, hanging 14 wallpaper, painting the bathroom, changing 15 faucets, light bulbs, all the customary and 16 usual tasks that -- 17 Q. How do you figure out what the 18 capacity to do or not do those household 19 things? 20 A. I rely upon the client to tell me. 21 And as I say in my cover letter of my report 22 down in the last paragraph, this is a baseline 23 figure. 24 Q. Right. 25 A. Ten hours is a baseline. 42 1 So if Mr. Ray used to do 15 -- and 2 I'm making that up -- and now he can do five, 3 he's lost ten hours a week. However, if the 4 family comes in, Mr. Ray comes in and says I 5 used to be able to do 15 and now I can do ten, 6 then the loss is only five and you should 7 adjust my figure accordingly. 8 Also, if Mr. Ray says I used to do 9 20 and now I can only do six, then that's a 10 loss of 14 and you should adjust my figure 11 accordingly. So this is a baseline figure. 12 Q. So you would expect the jury to 13 adjust your figure accordingly based on that 14 evidence? 15 A. No, I would expect that I would 16 adjust it. 17 Q. So these figures represent an 18 adjustment already? 19 A. No. These figures represent a 20 baseline. And when the trial comes along and 21 the people who knew Mr. Ray and when Mr. Ray 22 testifies and the testimony is whatever it is, 23 I assume that when I come in, Mr. Hirshman is 24 going to say to me, Mr. Burke, I want you to 25 assume that prior testimony in this case 43 1 indicated a loss of 12 hours per week. If the 2 loss is 12 hours per week, then what would be 3 the -- 4 Q. I see. 5 A. And I already have it set up for 6 ten, so I'll add 20 percent to it. Or if it 7 goes the other way, I'll subtract 35 percent. 8 But I didn't know Mr. Ray. I 9 didn't see him before the fact, so I rely upon 10 his testimony and the family's testimony. 11 Q. How about on table one, page four? 12 A. Yes, sir. 13 Q. You have a pre-injury forecast. My 14 understanding of this is that this documents 15 his income for the years 1993 to 2001 as 16 obtained from his W-2s? 17 A. Yes. 18 Q. And then there's a pre-injury 19 forecast? 20 A. Yes. 21 Q. Can you explain to me how you 22 arrive at the pre-injury forecast? 23 A. Yes. I look back at Mr. Ray's 24 demonstrated earning capacity when he went from 25 $23,000 to 24,000 to 25,000 back down to 24, up 44 1 to 29 in 1997. If he had continued working and 2 had not been injured, how much would he have 3 made in 1998? I made the judgment that he 4 would have made a little better than 30,000. 5 He would have made $30,800. 6 How much would he have made in 7 1999? $31,000. How much would he have made in 8 2000? 34,000. 9 How much would he make in this 10 year? I thought he would be making about 11 $36,000. That is based upon the trend of his 12 past demonstrated record. 13 Q. And that -- does that include 1997; 14 is that part of that calculation? 15 A. Yes, sir, it is. 16 Q. As I look at these numbers, the 17 1994 and then an increase to 95 and then back 18 down in 96, how do we not know that the 29,242 19 in 1997 isn't an aberration statistically 20 speaking? 21 A. It could be. That's possible. 22 Q. As for the -- I'm skipping down a 23 little bit down to 2001, the $16,640 figure 24 that you have. 25 A. Yes, sir. 45 1 Q. Where do you get that from? 2 A. That's $8 an hour straight time 3 wages. 4 Q. For the year? 5 A. Yes, sir. 6 Q. But 2001 isn't completed yet, 7 correct? 8 A. No. But that's still what it is. 9 That's $8 an hour straight time wages. So if 10 you work 40 hours a week, 52 weeks a year at $8 11 an hour, that's how much you'll earn. 12 Q. It doesn't account for overtime? 13 A. No, no. It's straight time hours, 14 40 hours. 15 Q. If these numbers from 93 through 98 16 up until 9-28-98, what you have marked as the 17 date of injury, if those numbers encompassed 18 overtime, would that make any difference in 19 your calculations? 20 A. It would not make a difference in 21 the past because that's already happened. 22 Q. Right. 23 A. But it would make a difference in 24 the future. The $16,000, as I said, is 25 straight time, 40 hours a week. 46 1 Q. Right. 2 A. If in fact you're getting in 50 3 hours a week, the 16,000 will be greater. It 4 will be more like 22,000. So, yes, that should 5 be adjusted. 6 Q. So up to -- on this table, down to 7 the year 2000, those are actual and you have 8 actual written next to $15,961? 9 A. Yes, sir. 10 Q. That's the actual money earned? 11 A. Yes. 12 Q. $16,640 for 2001, that is somewhat 13 of a projection based on what you said before? 14 A. Yes, sir, straight time wages, 15 full-time employment. 16 Q. What is this 1993 and 1997 CAGR? 17 A. That's the growth rate. 18 Q. That's the growth rate? 19 A. Yes, sir. 20 Q. Is that calculated based on those 21 figures from 93 to 97? 22 A. Yes, sir. That's what it says, 23 yes, sir. 24 Q. I didn't know if you got that from 25 a book or something like that. 47 1 A. Well, I get a lot of things from a 2 book. 3 Q. But it's a mathematical 4 computation, you plug in the numbers from 93 5 through 97? 6 A. Yes, sir. 7 Q. And you figure out the average 8 interest increase over -- the average percent 9 increase over the point in time? 10 A. Yes, sir. 11 You'll like this one. You take 12 29,242, you divide it by $23,702. You then 13 take the logarithm of that number, you divide 14 the logarithm by four. You then take the 15 antilog of that number, you subtract one, move 16 the decimal point two places to the right, end 17 up with 5.39. How's that? 18 Q. That is way beyond my mathematical 19 ability. Way beyond. I knew that when my 20 father told me I should have taken AP calculus, 21 I should have done that and I didn't. 22 A. Listen to your old man. 23 Q. Back to this pre-injury forecast of 24 the income. 25 Wait a minute. I lost my train of 48 1 thought here. 2 I think I already asked you this. 3 The pre-injury forecast, 98 to 2001, could you 4 just explain that? 5 A. Yes, sir. That assumes that the 6 1997 income, $29,242, represents his capacity 7 of that year, which we know it does. It 8 assumes that his income would continue to grow. 9 Q. At the 5.39 percent? 10 A. At the 5.39 percent. If it does, 11 you make 30,000, then 32, then 34, then 36. 12 Q. To figure out the loss in this 13 case, the difference between the actual income 14 earned and the pre-injury forecast income, you 15 would subtract the -- let's take 98 -- let's 16 take 2001 as an example. You would subtract 17 the $36,077 from the 16,640? 18 A. Yes, sir. 19 Q. And, again, you don't know if the 20 years 1993 through 1997 or even 1998 up to 21 9-28-98, you don't know if that involves 22 overtime pay or not, is that correct? 23 A. I do know. 24 Q. Okay. Does it? 25 A. I was informed this afternoon by 49 1 Mr. Hirshman that it does. 2 Q. Will that have an impact in your 3 projected -- on the pre-injury forecast? 4 A. Yes. 5 Q. I see at the time bottom of the 6 page you have in your footnote, as of 7 6-25-99 -- strike that. 8 The first sentence, "As supplied by 9 counsel," that's Mr. Hirshman that you're 10 referring to? 11 A. Yes, sir. 12 Q. You also have written, "medical 13 leave began 11-09-98 after consumption of eight 14 days of vacation"? 15 A. Yes, sir. 16 Q. Have those eight days of vacation 17 gone into your calculations in this case at 18 all? 19 A. Yes, sir. If they're paid 20 vacation, they do. If they show up -- if it's 21 paid vacation, it shows up on a W-2. If it's 22 not paid vacation, then it doesn't show up. 23 Q. If the eight days of vacation were 24 planned prior to the event of 9-28-98, would 25 that change your calculation? 50 1 A. No. 2 Q. Let me ask you this. Do the eight 3 days of vacation, are they part of any 4 calculated projected loss? 5 A. No. 6 Q. I see you have as of 6-25-99 7 employment at Rossborough was terminated. 8 A. Yes, sir. 9 Q. Are you aware of any of the 10 circumstances why employment at Rossborough was 11 terminated? 12 A. Not really, no, sir. 13 Q. Would that make any impact on your 14 determination of the potential income in the 15 future or are you completely relying -- 16 reliable -- do you completely rely on 17 Mr. Ancell for that information? 18 A. I completely rely on Ancell. 19 Q. I'm on to page five, table two, 20 which is described as the schedule showing the 21 present value of pre-injury earnings and fringe 22 benefits through age 66 and four months. Is 23 that the projection from the pre-injury 24 forecast carried on? 25 A. Yes, sir. 51 1 Q. And a projection as well made for 2 the fringe benefits? 3 A. Yes, sir. 4 Q. And then a reduction made to reduce 5 that to present value? 6 A. Yes, sir. 7 Q. Let me go back to page four. 8 A. Sure. 9 Q. In that calculation for 2001 in 10 table one. 11 A. Yes, sir. 12 Q. $16,640, are you aware -- I'm 13 assuming that you used some actual records for 14 that and then projected, is that correct? 15 A. No, that's a -- 16 Q. That's wrong. All right. 17 A. I've told you what that is several 18 times. That's 40 hours a week, 52 weeks a 19 year, times $8 an hour per Ancell. 20 Q. So it's not based on any actual 21 time that would have been worked? 22 A. It's based upon 40 hours a week, 52 23 weeks a year, $8 an hour as per Ancell. 24 Q. Do you know if in 2001 Mr. Ray 25 worked to date, because we're still in 2001, a 52 1 40-hour workweek? 2 A. I have no information on Mr. Ray's 3 work effort in 2001. Mr. Hirshman has informed 4 me that he is working. But I have -- I don't 5 think I have -- unless I got it in the new 6 packet of information. I have no work records 7 for 2001. I do have a W-2 for the last of 8 2000. 9 Q. Do you anticipate -- I imagine you 10 anticipate reviewing these medical records -- 11 not the medical records -- the employment 12 records at some point prior to your testimony 13 at trial? 14 A. Yes, sir, I do. 15 Q. Do you anticipate the testimony you 16 offer at trial will be based in any way on 17 information garnered from your review of those 18 materials? 19 A. It could be, but I'm going to have 20 to know what's in there. However, you haven't 21 asked me about this, but I would like to 22 volunteer it if I could. 23 Q. By all means. 24 A. There will be a change because it 25 would appear to me based upon that last half of 53 1 2000 that Mr. Ray is getting eight or nine 2 hours per week of overtime in his current job. 3 And if he does get eight or nine hours per week 4 overtime on his current job, then his earning 5 capacity would not be the 8 hours a week, 52 6 weeks a year, 40 hours a week, which is 7 $16,000. So it would be more like 22,000. 8 Q. And that would change the 9 bottomline number? 10 A. Yes, it would change the bottomline 11 number. And I made some preliminary 12 calculations on that this afternoon. And I 13 think it would reduce the net loss, the 14 bottomline loss, which I report as almost 15 $600,000? 16 Q. That's the 594 figure? 17 A. Yes, 594, almost 600,000. It would 18 reduce it to a little bit more than 400,000. 19 It would reduce the loss by about a third. And 20 so that's about $200,000, and, therefore, the 21 loss would therefore be $404,000. 22 Q. Other than that calculation -- is 23 there any other information which you feel at 24 this time will change the bottomline figure? 25 A. None that I'm aware of. However, 54 1 if new information becomes available, I always 2 try to make use of the best information. But 3 I'm not aware of anything else. 4 Q. And these employment records are 5 new information to you? 6 A. They're new information, yes, sir. 7 MR. KRAUSE: I would just like to 8 note an objection to the employment records. 9 We just got them. 10 MR. HIRSHMAN: So did we. 11 MR. KRAUSE: What's that? 12 MR. HIRSHMAN: So did we. 13 MR. KRAUSE: I think there's been 14 some indication -- and I don't know because I 15 certainly wasn't there -- some indication that 16 some of these records may have been obtained 17 back in December of 2000. I don't know -- 18 MR. HIRSHMAN: Not any employment 19 records, that's not true. 20 MR. KRAUSE: I don't want to speak 21 to which ones, whatever, but to the extent they 22 were obtained earlier than that -- 23 MR. HIRSHMAN: You've got an 24 obligation in this case to file the appropriate 25 discovery requests. And I have thoroughly 55 1 reviewed them. There aren't any. 2 I've responded to your motion to 3 compel. And you'll probably have that document 4 when you get back to the office. Suffice it to 5 say, it seems to me that you've never made a 6 Request for Production of Documents pursuant to 7 Rule 34. 8 And it further seems pretty clear 9 to me that you've now got the documents, so 10 it's a moot point, so let's move on. 11 MR. KRAUSE: I just want to note my 12 objection for the record and I stand on it. 13 Q. I think we were up to page -- 14 A. Five. 15 Q. -- five here. 16 Basically table two I think we 17 already addressed that. 18 A. I think we have. 19 Q. Let's go to page six. Table three. 20 Is this -- does this represent a projection of 21 what the earning capacity is of Mr. Ray in his 22 current employment? 23 A. Yes, sir, for straight time work at 24 $8 an hour. 25 Q. And table four on page seven, what 56 1 is the replacement cost of services? 2 A. That's the item that we talked 3 about as the -- 4 Q. Household services? 5 A. -- household services, jobs around 6 the house. 7 Q. And this is a projection of that 8 loss? 9 A. At a baseline of ten hours per 10 week, yes, sir. 11 Q. So it's not the actual loss, it's a 12 projection? 13 A. It's a projection. Nobody knows 14 what the actual loss is going to be. It's a 15 projection. 16 Q. We're on page eight. 17 A. Certainly. 18 Q. Schedule showing employee benefits 19 as percent of payroll for selected benefits. 20 In there you have a section pension insurance 21 and other agreed upon payments. 22 The insurance I think we've already 23 gone over. 24 This pension insurance and other 25 agreed upon payments, they don't purport to 57 1 quantify the actual loss, they're a projection? 2 A. Correct. 3 Q. Based on a loss of capacity? 4 A. Yes, sir. 5 Q. So they're not indicative of what 6 Mr. Ray necessarily actually lost, or allegedly 7 actually lost? 8 A. Allegedly actually lost. 9 Q. Allegedly -- they're not 10 necessarily indicative of what the actual 11 loss -- 12 A. Correct. 13 Q. -- of Mr. Ray is or is not? 14 A. Nobody knows what the actual loss 15 is going to be. 16 Q. Let's move on to page nine. Page 17 nine looks to be a calculation of the 18 contribution to Social Security projected over 19 time. 20 A. That's what it is, yes, sir. And 21 there's no projection there. 22 Q. There is no projection there. 23 A. No, it's all in the past. That's 24 all it is. 25 Q. So 1999 and up doesn't involve 58 1 any -- 2 A. Well, 1999 is in the past. 3 Q. Right. But up is not? 4 A. But up is not. But that's what it 5 was in 1999. Until Congress in its wisdom 6 decides to change it. 7 Q. And these appendices, the 40-some 8 pages, I'm not going to go through them all. 9 A. Good. 10 Q. I'm sure Mr. Hirshman would be 11 happy about that, too. 12 They represent the tables on which 13 the calculations present in your nine-page -- I 14 believe it was nine pages -- nine-page report 15 were made? 16 A. In part. I didn't make use of 17 every page in the appendix. 18 Q. I understand. But certainly if 19 they were attached as appendices, they would 20 have been used in some manner -- 21 A. In some way, yes. 22 Q. -- in your calculations? 23 MR. KRAUSE: Why don't we go off 24 the record for a second. 25 (Recess off the record.) 59 1 MR. KRAUSE: I have no further 2 questions. Mr. Hirshman might explain it to 3 you; I'm sure you're already familiar with your 4 right to read. 5 MR. HIRSHMAN: I don't think he 6 wants to read this. I don't think you want to 7 pay him to read it. 8 You can waive as far as I'm 9 concerned. 10 THE WITNESS: Did you do a good 11 job? 12 THE NOTARY: Yes. 13 THE WITNESS: I will waive my right 14 to read this then. 15 16 (Deposition concluded.) 17 - - - - - 18 19 20 21 22 23 24 25 60 1 CERTIFICATE 2 The State of Ohio, ) 3 SS: 4 County of Cuyahoga. ) 5 6 I, Michele Eddy, a Notary Public 7 within and for the State of Ohio, duly 8 commissioned and qualified, do hereby certify 9 that the within named witness, JOHN F. BURKE, 10 JR., Ph.D., was by me first duly sworn to 11 testify the truth, the whole truth and nothing 12 but the truth in the cause aforesaid; that the 13 testimony then given by the above-referenced 14 witness was by me reduced to stenotypy in the 15 presence of said witness; afterwards 16 transcribed, and that the foregoing is a true 17 and correct transcription of the testimony so 18 given by the above-referenced witness. 19 I do further certify that this 20 deposition was taken at the time and place in 21 the foregoing caption specified and was 22 completed without adjournment. 23 24 25 61 1 I do further certify that I am not 2 a relative, counsel or attorney for either 3 party, or otherwise interested in the event of 4 this action. 5 IN WITNESS WHEREOF, I have hereunto 6 set my hand and affixed my seal of office at 7 Cleveland, Ohio, on this day of 8 , 2001. 9 10 11 12 13 14 Michele Eddy, Notary Public 15 within and for the State of Ohio 16 17 My commission expires May 22, 2005. 18 19 20 21 22 23 24 25 62 1 I N D E X 2 3 EXAMINATION OF JOHN F. BURKE, JR., Ph.D. 4 BY MR. KRAUSE............................ 3:6 5 6 Exhibit 1 was marked..................... 28:3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 1 SIGNATURE OF WITNESS 2 3 4 5 6 The Deposition of JOHN F. BURKE, JR., 7 Ph.D., taken in the matter, on the date, and at 8 the time and place set out on the title page 9 hereof. 10 It was requested that the deposition be 11 taken by the reporter and that same be reduced 12 to typewritten form. 13 It was agreed by and between counsel and 14 the parties that the reading and signing of the 15 transcript of said deposition, be and the same 16 is hereby waived. 17 18 19 20 21 22 23 24 25