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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID F. JADWIN, D.O., Plaintiff,

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v.

Case No. 1:07-cv-00026-OWW-TAG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

14 COUNTY OF KERN; et al. 15 Defendants 16 17 18

Date: May 12, 2008 Time: 11:00 a.m. Place: Hon. Oliver W. Wanger Courtroom 3 2500 Tulare St Fresno, CA Date Action Filed: Date Set for Trial:

January 6, 2007 December 3, 2008

19 20 Plaintiff David F. Jadwin, D.O., respectfully submits this memorandum in opposition to 21 defendants’ motion for permission to serve expert reports after May 5, 2008. 22 I. BACKGROUND 23 The Scheduling Order issued by this Court on May 31, 2007 (Doc. 29), states: 24

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The parties are directed to disclose all expert witnesses, in writing, on or before February 4, 2008. . . . The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. (Doc. 29, 12:22 - 13:2).

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The Scheduling Order reproduces almost verbatim the deadlines and language contained in the

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parties’ jointly submitted Joint Scheduling Report, filed on May 21, 2007 (Doc. 26-1, 11:24-12:5). The

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parties had met and conferred extensively prior to jointly filing the Joint Scheduling Report, with

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defendants providing joint review and input at every step of the process. See Exhibit 1. The deadlines

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contained therein were negotiated and agreed to by defendants.

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Both the Joint Scheduling Report and the Scheduling Order included the following stipulation of the parties:

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The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including raw data of any psychological testing. Plaintiff is willing to undergo psychological examination by Defendants’ qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding the timing and scope of the examination, including the specific tests to be performed, and prompt production of the subsequent report and raw data supporting the report to all parties. (Scheduling Order, Doc. 29, 14:5-19; Joint Scheduling Report, Doc. 26-1, 11:2412:5)(emphasis added).

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As early as May of 2007, almost one full year ago, defendants were well aware that plaintiff was

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continuing to receive psychiatric treatment for depression and emotional distress, and the parties had

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already in fact entered into a stipulation for a Rule 35 defense psychological examination.

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On November 14, 2007, roughly 3.5 months into discovery, Defendants asked plaintiff to agree

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to a 3-month continuance of all deadlines in the Scheduling Order in order to accommodate difficulties

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defendants were experiencing gathering and producing documents. Plaintiff reluctantly agreed to a

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stipulation, which defendants submitted to the Court for approval. See Exhibit 2. The Court granted

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defendants’ request for 3-month continuance by Order issued on November 17, 2007. See Exhibit 3. In

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that Order, the Court set the new deadline for expert disclosure as May 5, 2008, 3 months after the

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original deadline of February 4, 2008. The Court also wrote in bolded letters “No further continuances

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will be granted (oww).”

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On January 22, 2008, defendants sent an email to plaintiff stating “Defendants want Dr. Jadwin

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to be evaluated by independent medical examiners as to his medical and psychiatric conditions.”

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Plaintiff replied that same day, requesting the kinds of tests to be conducted and the scope of

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examination. See Exhibit 4. Plaintiff never received a response.

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On March 25, 2008, defendants sent an email stating “we want to set Dr. Jadwin’s independent

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medical exam.” Plaintiff replied that same day, again requesting the kinds of tests to be conducted, the

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scope of examination and the name of the examining psychiatrist. See Exhibit 5. Plaintiff never received

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a response.

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On April 16, 2008, during a break at a deposition, defendants stated that they wished to conduct

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a mental examination of plaintiff. Plaintiff yet again requested the kinds of tests to be conducted, the

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scope of examination and the name of the examining psychiatrist. Defendants said they would provide

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such information shortly.

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On May 1, 2008, defendants asked plaintiff over a series of emails to stipulate to a one month delay in disclosure of Rule 26 expert witness opinion reports. See Exhibit 6. Defendants stated:

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I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical.” (See Exhibit 6.)

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Defendants further stated:

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For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. (See Exhibit 6.)

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Plaintiff responded 18 19 20 21 22 23 24

First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr. Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly thereafter, I asked you for further details regarding the scope of the defense mental exam, type of tests to be performed, etc., and never received them. To date, I still have not received them. Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree to yet another stipulation by defendant for a 1 month continuance on expert deadlines. (See Exhibit 6.)

25 On May 2, 2008, defendants sent an email to plaintiff inviting plaintiff “to hold onto you [expert] 26 reports and not disclose them until our motion for partial relief from the scheduling order is resolved.” 27 Plaintiff responded, “Plaintiff intends to adhere to Judge Wanger’s trial schedule.” See Exhibit 7. 28

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Also on May 2, defendants finally provided plaintiff with the details of the requested defense psychological examination of plaintiff. Defendants stated: We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in Woodland Hills. The evaluation will consist of two, 4-hour sessions on two different days. The sessions will be oral interviews and will not involve any testing. If any tests are to be administered to Dr. Jadwin, they will be done separately and only after separate arrangements are made with you. (See Exhibit 8).

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Plaintiff replied that same day, asking defendants to send over a draft stipulation. To date, plaintiff has 7 not received such draft. 8 On May 5, 2008, defendants asked plaintiff to stipulate to shortened time to hear a motion for 9 partial relief from the scheduling order. Plaintiff replied that he would so stipulate, provided defendants 10 agreed to (1) submit their motion to Judge Wanger, not Magistrate Judge Goldner, as defendants were 11 requesting a variance to the Scheduling Order, and (2) stipulate to permit plaintiff to file a supplemental 12 (not amended) complaint, a draft of which plaintiff had sent to defendants on April 17, 2008, but to 13 which plaintiff had never gotten a response. Defendants refused both of plaintiff’s requests. See Exhibit 14 9. 15 On May 5, 2008, the deadline set by the Court for expert disclosure pursuant to Rule 26(a)(2), 16 plaintiff served on defendants his disclosures of expert witnesses in full compliance therewith. Plaintiff 17 fully disclosed the written opinion reports, credentials, publications, testimony history, fee schedules, 18 and other required information for four expert witnesses. See Exhibit 10. 19 Also on May 5, defendants filed a Notice of Designation with the Court, purporting to comply 20 with Rule 26(a)(2). See Exhibit 11. However, the Notice of Designation did not comply with Rule 21 26(a)(2) in that it did not include any written opinion reports, nor the list of cases in which Dr. Burchuk 22 (forensic psychiatrist) and Dr. Sarkasian (vocational rehabilitation) had testified in, nor a list of 23 publications authored by Dr. Sarkasian during the past 10 years. The disclosures of the fee schedules for 24 Drs. Burchuk and Olson-Buchanan (behavioral specialist) were also incomplete. 25 Also on May 5, defendants filed the instant ex parte application to shorten time. 26 27 28

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II. ARGUMENT

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A. The Expert Designation Deadline Was Set by Defendants Themselves

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Defendants’ Declaration of Mark Wasser states: “Under the Scheduling Order, expert witnesses

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are to be disclosed on May 5, 2008, a date that is 180 days before trial. Under Rule 26, the default

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disclosure date is only 90 days before trial.” (Doc. 118, 2:4-6). Also, on May 1, 2008, defendants had

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stated in an email to plaintiff:

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I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical.” (See Exhibit 6.)

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Defendants insinuate they have somehow been caught unawares by an unduly early expert disclosure

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deadline.

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However, defendants had negotiated and jointly set the expert disclosure deadline with plaintiff

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at the Rule 26(f) conference, held on January 8, 2007. Afterwards, defendants reviewed and exchanged

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drafts of the Joint Scheduling Report, containing the same expert designation deadline. See Exhibit 1. It

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is disingenuous of defendants to now insinuate that the deadlines have somehow caught them by

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surprise when it’s their own deadline which they negotiated with plaintiff for.

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B. Defendants’ Experts are Unprepared, and Defendants Have No Substantial Justification for That

17 1. Minnard v Rotech Does Not Apply in the Instant Case 18 In the case cited by defendants in support of their motion for relief, Minnard v. Rotech 19 Healthcare Inc., this Court observed: 20 21 22

Furthermore, an expert should be as prepared as possible at the time of designation. Unless a scheduling order otherwise permits, a general policy routinely allowing a party’s medical expert to be unprepared at time of designation does not comport with the needs of litigation or common sense. (2008 U.S. Dist. LEXIS 6149 (E.D. Cal. Jan. 15, 2008).

23 In Minnard, Magistrate Judge Gregory Hollows ultimately ruled that defendant should be permitted to 24 conduct a Rule 35 psychological examination of plaintiff and to then supplement their expert report after 25 the expert designation deadline had already passed. However, Judge Hollows based his ruling on the fact 26 that defendant did not find out until after the expert designation deadline that a forensic psychologist 27 would be necessary: 28

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Defendant, on the other hand, claims that it had no real knowledge of the need for such an interview prior to the deposition of plaintiff’s expert…. Plaintiff had been deposed but did not testify to any mental health treatment up to that point…. However, when plaintiff actually named an expert psychologist who issued a report on or about October 25, 2007, relying heavily on an interview with plaintiff, defendant Rotech was on notice that it would need the Rule 35 exam…. Nevertheless, plaintiff did not testify in his deposition to medical treatment for emotional problems, rendering the need for a Rule 35 exam much less obvious. At the time just prior to plaintiff’s designation of experts in later October 2007, the litigation landscape appeared to indicate that plaintiff’s emotional distress claims were no more than the ordinary, temporary shock occurring on the happening of an untoward event -- a shock that dissipates rather quickly over time. 2008 U.S. Dist. LEXIS 6149 (E.D. Cal. Jan. 15, 2008).

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2. Defendants Have No Justification for Not Preparing Dr. Burchuk’s and Dr. Sarkasian’s Reports by the Expert Disclosure Deadline Defendants state: “The importance of the Rule 35 examination only became known to Defendants after the conclusion of Plaintiff’s deposition on March 12, 2008.” (Doc. 118, 13:9-10).

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This is not true.

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On January 22, 2008, almost two months earlier, Defendants had emailed plaintiff with a request

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for a psychological examination of plaintiff, stating: The Defendants want Dr. Jadwin to be evaluated by independent medical examiners as to his medical and psychiatric conditions. We believe this will entail two evaluations, one as to his medical condition and to clear him medically for the psychiatric evaluation and a psychiatric evaluation. Can we work this out informally or would you prefer we simply notice it? We will do our best to accommodate his schedule.” (See Exhibit 4).

17 In fact, defendants knew as early as the Rule 26(f) conference of January 8, 2007 that a 18 psychological examination of plaintiff would be necessary. Both the Scheduling Order and the Joint 19 Scheduling Report specifically made reference to the “continued effective treatment of Plaintiff’s 20 depression, anxiety, insomnia, and emotional distress” (See Scheduling Order, Doc. 29, 14:5-19; Joint 21 Scheduling Report, Doc. 26-1, 11:24-12:5) – hence the stipulation that plaintiff would not be producing 22 his treaters’ psychotherapy notes to defendants. They also contained the parties’ express stipulation to a 23 psychological examination by defendants: 24

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Plaintiff is willing to undergo psychological examination by Defendants’ qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding the timing and scope of the examination, including the specific tests to be performed, and prompt production of the subsequent report and raw data supporting the report to all parties. (Scheduling Order, Doc. 29, 14:5-19; Joint Scheduling Report, Doc. 26-1, 11:24-12:5)

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Defendants went on to periodically send plaintiff additional requests to examine plaintiff,

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sending emails on March 25, 2008, on May 1, 2008, and on May 2, 2008. Defendants also raised the

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issue with plaintiff during a break in deposition on April 16, 2008. These requests were never resolved.

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Each time, Plaintiff asked for further necessary details about the exam, such as the scope and nature of

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the exam, the identity of the examining psychiatrist, etc. However, each time, defendants had not yet

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designated a forensic psychiatrist and so was unable to give plaintiff the requested information. As late

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as May 1, 2008, defendants told plaintiff:

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we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. (See Exhibit 6).

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At present, plaintiff awaits a draft stipulation from defendants regarding the exam. Plaintiff

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asked for the draft on May 2. Plaintiff has yet to receive it. As for Dr. Sarkasian, defendants’ vocational rehabilitation expert, defendants knew at least as

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early as August 6, 2007, when Initial Disclosures were exchanged, that plaintiff was claiming future

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wage loss as damages. This is because plaintiff included in his Initial Disclosures a 77-page Rule

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26(a)(2) report by his economic expert, complete with credentials, list of publications, fee schedule and

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past court testimony, etc. That report also included two future offset scenarios: 1) plaintiff’s startup

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business fails completely in which case plaintiff takes on contract pathologist work and 2) plaintiff’s

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startup business succeeds, eventually replacing his lost income completely. There is no excuse for

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defendants’ failure to submit a report by Dr. Sarkasian.

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Moreover, to the extent a Rule 35 psychological exam is pertinent to Dr. Sarkasian’s opinion, as

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defendants claim, then it was all the more incumbent on defendants to conduct the exam early. As noted

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above, the parties had already agreed to a defense psychological exam at the Rule 26(f) conference on

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January 8, 2007. Defendants have repeatedly approached plaintiff about scheduling an exam since at

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least January 22, 2008. Yet defendants were never able to supply plaintiff with even the name of the

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examining psychiatrist, let alone the scope and details of the exam as required by the Scheduling Order,

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despite plaintiff’s repeated requests.

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3. Defendants Have No Justification for Not Preparing Dr. Olson-Buchanan’s Report by the Expert Disclosure Deadline Defendants attempt to explain their inability to provide the report of Dr. Olson-Buchanan, their

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behavioral expert, as follows: “Defendants must know the theories Plaintiff is pursuing before Dr.

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Olson-Buchanan can complete her report.” (Doc. 118, 2:19-20).

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If defendants are unaware of plaintiff’s theories after over 9 months of discovery, it is solely

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because they have been dilatory. Defendants have not propounded a single set of written discovery.

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They have not conducted the depositions of anyone other than plaintiff himself. They have perhaps not

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carefully read plaintiff’s Second Supplemental Complaint (Doc. 30), which lays out plaintiff’s claims

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and allegations in excruciating detail spanning 52 pages. By contrast, plaintiff has conducted 13

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depositions and propounded two sets of document requests and interrogatories. It should be noted that

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defendants do not now request an examination of plaintiff by their behavioral expert.

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Defendants have also had unequalled access to all of the information needed to timely prepare a

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behavioral report. They have access to all the former and current employees of Kern Medical Center

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who witnessed plaintiff’s alleged “behavior” at issue in this action, without even having to go through

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the hassle or expense of a deposition as is the case for plaintiff. And as is true with most defendants,

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defendants also have access to all of the documents relevant to this action, including but not limited to

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the Initial Disclosures, plaintiff’s Rule 26 supplemental disclosures of January 8, 2008 and March 11,

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2008. Finally, defendants have already taken the videotaped deposition of Dr. Jadwin for five days, from

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January 8 to 10, 2008, and then again from March 11 to 12, 2008.

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At this point, it is difficult to discern what more information Dr. Olson-Buchanan could possibly need to prepare her report.

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In short, defendants can in no way make a claim of surprise or ignorance as was the case in

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Minnard. Defendants have already had the benefit of asking for and receiving a 3-month continuance on

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all deadlines in this action. Discovery has been ongoing for over 9 months, with less than 2 months of

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discovery remaining. Defendants have long had all the information necessary to determine whether and

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what kind of expert testimony was required. They were aware from January 2007 of the need for a

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psychological exam of plaintiff. There is no excuse for their failure to have their expert reports ready by

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the deadline.

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C. Defendants Insinuate Plaintiff Has Been Likewise Dilatory in Discovery; That Is Not True

2 Defendants Declaration of Mark Wasser states: “The depositions Plaintiff has taken to date have 3 focused on Defendants’ affirmative defenses and Plaintiff has done little to develop any evidence to 4 support the allegations in his complaint.” (Doc. 118, 2:20-22). Defendants insinuate that they are not 5 alone in being dilatory about discovery, that plaintiff too has not done enough. 6 While plaintiff is indeed holding off deposing the defendants and main witnesses until the last 7 two months of discovery, plaintiff does so for good cause. On December 21, 2007, plaintiff had filed 8 with the Court a motion to compel production of documents in response to plaintiff’s requests for 9 production, set one. Plaintiff had served those requests on defendants on October 11, 2007. In response, 10 defendants chose to withhold numerous critical documents based upon objections of state-based peer 11 review and personnel privacy privilege – even with respect to plaintiff’s federal law causes of action. 12 After extensive briefing by plaintiff on this important issue of the applicability of state-based privileges 13 to federal law causes of action, Magistrate Judge Theresa Goldner heard the motion on January 14, 14 2008, and took the matter under submission. 15 To date, with less than two months remaining in discovery, no ruling has issued. Plaintiff had 16 delayed conducting his most critical depositions of defendants until after a ruling is issued so the 17 depositions can be conducted with the benefit of having the requested documents. The importance of the 18 documents to plaintiff’s case cannot be overstated. Plaintiff anxiously awaits the ruling, which the Court 19 has told plaintiff will issue “shortly”. 20 D. Defendants’ Request For Yet Another Continuance Will Prejudice Plaintiff 21 In Shumaker v. West, the Southern District of West Virginia observed that 22

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The deadlines relating to expert disclosures and the requisites provided in Rule 26 regarding the expert report are there for good reason. Both parties are entitled to knowledge relating to the other side’s experts. Without access to the identity of an expert witness and the expert’s report, an opposing party cannot properly prepare its case or rebut the other party’s expert witness. (196 F.R.D. 454, 456 (S.D. W. Va. 2000)).

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Defendants have already requested and been granted a 3-month continuance. The Court’s Order

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granting defendants’ prior request for a 3-month continuance of trial deadlines stated in bolded letters:

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“No further continuances will be granted (oww).” Plaintiff has taken great pains to observe the

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Court’s trial schedule and successfully complied with the expert designation deadline of May 5.

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Defendants state: “Defendants anticipate that Dr. Olson-Buchanan’s report will be available

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before the June 4 deadline for supplemental disclosures. Plaintiff will have it in time to prepare any

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necessary supplemental designation.” (Doc. 118, 14:3-5). They further state: “Postponing disclosure of

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the expert reports will not prejudice Plaintiff.” (Doc. 118, 14:6).

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If defendants are permitted to submit expert reports after May 5, 2008, various deadlines will run

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into each other in a cascading effect, prejudicing plaintiff. For instance, June 4, 2008 is the supplemental

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expert disclosure deadline. At present, plaintiff is not able to effectively depose defendants’ experts in

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the absence of defendants’ reports, depriving plaintiff’s experts of information about defendants’ expert

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opinions. The same is doubly true of defendants’ expert reports, without which plaintiff’s experts cannot

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formulate rebuttals. Deprived of these, plaintiff’s experts will have difficulty meeting the June 4

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rebuttal/supplemental expert disclosure deadline.

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The prejudice for plaintiff is compounded by the fact Regina Levison, plaintiff’s medical

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executive recruiter expert, will be traveling abroad starting May 20, 2008, returning to California on

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June 7, 2008. Unless defendants provide plaintiff will their expert reports sufficiently in advance of May

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20, 2008, Ms. Levison will not be able to complete her supplemental/rebuttal opinion report by June 4.

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If the Court were to continue the supplemental expert deadline in recognition of the above

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difficulties, this shortens the time for plaintiff to conduct depositions of defendants’ rebuttal experts,

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since the discovery cut-off is July 7, 2008. If the Court then continues the discovery cutoff, this shortens

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plaintiff’s time to prepare and file non-dispositive and dispositive motions. And so on.

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The only potentially workable solution would be a continuance of all pre-trial and trial dates,

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which means defendants are effectively, for a second time, asking for a continuance of the entire trial

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schedule. But plaintiff has worked diligently to prosecute this case and is anxiously awaiting his day in

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court. Litigation is costly, time-consuming and stressful. It has put plaintiff and his family on pause. It

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has exacerbated his disabling depression. It has strained his marriage.

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Through no fault of plaintiff’s own, the trial schedule has already been continued once. Plaintiff should not have to pay a second time for defendants’ inexcusable negligence.

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E. Defendants’ Request Is Disfavored Because Defendants Waited until the Day of the Deadline

2 Local Rule 6-144 of this Court states: 3

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Counsel shall seek to obtain a necessary extension from the Court or from other counsel or parties in an action as soon as the need for an extension becomes apparent. Requests for Court-approved extensions brought on the required filing date for the pleading or other document are looked upon with disfavor.

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It must also be established that the moving party is without fault in creating the crisis or that the crisis

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occurred as a result of excusable neglect. See Mission Power Engineering Co. v. Continental Cas. Co.,

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(CD CA 1995) 883 F.Supp. 488, 492 (“Ex parte applications are not intended to save the day for parties

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who have failed to present requests when they should have ... “); see also In re Intermagnetics America,

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Inc. (CD CA 1989) 101 BR 191, 193.

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Defendants have been inexcusably negligent in conducting discovery in this action. They bear

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the entire fault for creating the crisis which has prompted this motion. To make matters worse,

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defendants waited until the very day of the deadline before filing this motion for relief. Defendants’

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motion is disfavored and given defendants’ own inexcusable neglect in creating the crisis, it should be

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denied.

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III. CONCLUSION In Shumaker v. West, the court considered the defendant’s motion to compel a medical exam of

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plaintiff when the defendant had failed to attach his report to his Rule 26(a)(2)(B) expert disclosures. In

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that case, the defendant had filed their motion to compel the Rule 35 exam 6 days prior to the expert

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designation deadline. The court denied the defendant’s request, reasoning as follows:

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On or around August 22, 2000, Defendant requested that Plaintiff agree to an examination by Dr. Manges. When Plaintiff refused, Defendant filed the instant Motion on August 31, 2000. On or around September 6, 2000, Defendant served his expert disclosures pursuant to Rule 26(a)(2)(B), disclosing Dr. Manges as an expert, but did not attach a report. (196 F.R.D. 454, 456 (S.D. W. Va. 2000))…. By at least September 5, 2000, if he intended to use Dr. Manges as an expert, Defendant was required under Rule 26 to have Dr. Manges’ medical report in hand and ready to turn over to the Plaintiff. Nevertheless, Defendant failed to attach a report to his expert disclosures. To comply with the Rule, Defendant should have sought to obtain the medical examination, which he now seeks by motion filed August 31, 2000, well before the September 5, 2000, deadline. 196 F.R.D. 454, 456 (S.D. W. Va. 2000).

27 In the instant case, defendants have failed to conduct any medical or vocational exam of plaintiff by the 28

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May 5 expert disclosure deadline. Plaintiff requested the details of defendants’ requested psychological

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exam all the way back on January 22, 2008, but it was only recently that defendants finally gave plaintiff

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this essential information. Moreover, defendants’ ex parte motion represents the first instance of

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plaintiff’s ever hearing of defendants’ desire to conduct a vocational exam on plaintiff. There has been

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no prior mention of it to plaintiff whatsoever.

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Defendants have been inexcusably negligent in failing to meet the May 5 expert disclosure

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deadline. Granting defendants’ request would prejudice plaintiff for something which was not plaintiff’s

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doing. Plaintiff respectfully requests that the Court deny defendants’ motion for relief from the May 5,

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2008 expert designation deadline. Plaintiff further requests that the Court grant plaintiff a protective

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order against any psychological or vocational exam defendants seeks to conduct on plaintiff.

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Respectfully submitted on May 9, 2008.

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/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected]

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Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

10 11

DAVID F. JADWIN, D.O.,

Civil Action No. 1:07-cv-00026-OWW-TAG

12

14

DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

Plaintiff,

13 v.

15 16

COUNTY OF KERN; et al. Defendants.

17 18

Date: May 12, 2008 Time: 11:00 a.m. Place: Hon. Oliver W. Wanger Courtroom 3 2500 Tulare St Fresno, CA Date Action Filed: Date Set for Trial:

19

January 6, 2007 December 3, 2008

20 21 22 23 I, the undersigned, declare and say, as follows: 24 1.

I am an attorney at law duly licensed to practice before the Federal and State Courts of

25 California and admitted to practice before the United States District Court for the Eastern District of 26 California. I am the attorney representing Plaintiff David F. Jadwin in this matter. 27 2.

I am making this declaration in support of Plaintiff Dr. Jadwin’s Opposition to

28

DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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Defendants’ Motion for Permission to Serve Expert Reports After May 5, 2008. The facts stated herein

2

are personally known to me and if called as a witness, I could and would competently testify to the truth

3

of the facts set forth in this declaration.

4

3.

5

The parties are directed to disclose all expert witnesses, in writing, on or before February 4, 2008. . . . The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. (Doc. 29, 12:22 - 13:2).

6 7

The Scheduling Order issued by this Court on May 31, 2007 (Doc. 29), states:

8 4.

The Scheduling Order reproduces almost verbatim the deadlines and language contained

9 in the parties’ jointly submitted Joint Scheduling Report, filed on May 21, 2007 (Doc. 26-1, 11:24-12:5). 10 The parties had met and conferred extensively prior to jointly filing the Joint Scheduling Report, with 11 defendants providing joint review and input at every step of the process. See Exhibit 1. The deadlines 12 contained therein were negotiated and agreed to by defendants. 13 5.

Both the Joint Scheduling Report and the Scheduling Order included the following

14 stipulation of the parties: 15 16 17 18 19 20 21

The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress, including their diagnoses and prognoses, and the basis for their opinion, including raw data of any psychological testing. Plaintiff is willing to undergo psychological examination by Defendants’ qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding the timing and scope of the examination, including the specific tests to be performed, and prompt production of the subsequent report and raw data supporting the report to all parties. (Scheduling Order, Doc. 29, 14:5-19; Joint Scheduling Report, Doc. 26-1, 11:2412:5)(emphasis added).

22 6.

As early as May of 2007, almost one full year ago, defendants were well aware that

23 plaintiff was continuing to receive psychiatric treatment for depression and emotional distress, and the 24 parties had already in fact entered into a stipulation for a Rule 35 defense psychological examination. 25 7.

On November 14, 2007, roughly 3.5 months into discovery, Defendants asked plaintiff to

26 agree to a 3-month continuance of all deadlines in the Scheduling Order in order to accommodate 27 difficulties defendants were experiencing gathering and producing documents. Plaintiff reluctantly 28

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1

agreed to a stipulation, which defendants submitted to the Court for approval. See Exhibit 2. The Court

2

granted defendants’ request for 3-month continuance by Order issued on November 17, 2007. See

3

Exhibit 3. In that Order, the Court set the new deadline for expert disclosure as May 5, 2008, 3 months

4

after the original deadline of February 4, 2008. The Court also wrote in bolded letters “No further

5

continuances will be granted (oww).”

6

8.

On January 22, 2008, defendants sent an email to plaintiff stating “Defendants want Dr.

7

Jadwin to be evaluated by independent medical examiners as to his medical and psychiatric conditions.”

8

Plaintiff replied that same day, requesting the kinds of tests to be conducted and the scope of

9

examination. See Exhibit 4. Plaintiff never received a response.

10

9.

On March 25, 2008, defendants sent an email stating “we want to set Dr. Jadwin’s

11

independent medical exam.” Plaintiff replied that same day, again requesting the kinds of tests to be

12

conducted, the scope of examination and the name of the examining psychiatrist. See Exhibit 5. Plaintiff

13

never received a response.

14

10.

On April 16, 2008, during a break at a deposition, defendants stated that they wished to

15

conduct a mental examination of plaintiff. Plaintiff yet again requested the kinds of tests to be

16

conducted, the scope of examination and the name of the examining psychiatrist. Defendants said they

17

would provide such information shortly.

18

11.

On May 1, 2008, defendants asked plaintiff over a series of emails to stipulate to a one

19

month delay in disclosure of Rule 26 expert witness opinion reports. See Exhibit 6. Defendants stated:

20 21

I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical.” (See Exhibit 6.)

22

Defendants further stated:

23

For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. (See Exhibit 6.)

24 25 26

Plaintiff responded 27 28

First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s surgery. Dr. Jadwin’s surgery became an issue only in

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relation to the setting of his deposition and nothing else. Dr. Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly thereafter, I asked you for further details regarding the scope of the defense mental exam, type of tests to be performed, etc., and never received them. To date, I still have not received them. Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree to yet another stipulation by defendant for a 1 month continuance on expert deadlines. (See Exhibit 6.)

7

12.

1 2 3 4 5

On May 2, 2008, defendants sent an email to plaintiff inviting plaintiff “to hold onto you

8

[expert] reports and not disclose them until our motion for partial relief from the scheduling order is

9

resolved.” Plaintiff responded, “Plaintiff intends to adhere to Judge Wanger’s trial schedule.” See

10

Exhibit 7.

11 12 13 14 15

13.

Also on May 2, defendants finally provided plaintiff with the details of the requested

defense psychological examination of plaintiff. Defendants stated: We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in Woodland Hills. The evaluation will consist of two, 4-hour sessions on two different days. The sessions will be oral interviews and will not involve any testing. If any tests are to be administered to Dr. Jadwin, they will be done separately and only after separate arrangements are made with you. (See Exhibit 8).

16 Plaintiff replied that same day, asking defendants to send over a draft stipulation. To date, plaintiff has 17 not received such draft. 18 14.

On May 5, 2008, defendants asked plaintiff to stipulate to shortened time to hear a

19 motion for partial relief from the scheduling order. Plaintiff replied that he would so stipulate, provided 20 defendants agreed to (1) submit their motion to Judge Wanger, not Magistrate Judge Goldner, as 21 defendants were requesting a variance to the Scheduling Order, and (2) stipulate to permit plaintiff to 22 file a supplemental (not amended) complaint, a draft of which plaintiff had sent to defendants on April 23 17, 2008, but to which plaintiff had never gotten a response. Defendants refused both of plaintiff’s 24 requests. See Exhibit 9. 25 15.

On May 5, 2008, the deadline set by the Court for expert disclosure pursuant to Rule

26 26(a)(2), plaintiff served on defendants his disclosures of expert witnesses in full compliance therewith. 27 Plaintiff fully disclosed the written opinion reports, credentials, publications, testimony history, fee 28

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schedules, and other required information for four expert witnesses. See Exhibit 10. 16.

Also on May 5, defendants filed a Notice of Designation with the Court, purporting to

3

comply with Rule 26(a)(2). See Exhibit 11. However, the Notice of Designation did not comply with

4

Rule 26(a)(2) in that it did not include any written opinion reports, nor the list of cases in which Dr.

5

Burchuk (forensic psychiatrist) and Dr. Sarkasian (vocational rehabilitation) had testified in, nor a list of

6

publications authored by Dr. Sarkasian during the past 10 years. The disclosures of the fee schedules for

7

Drs. Burchuk and Olson-Buchanan (behavioral specialist) were also incomplete.

8

17.

Also on May 5, defendants filed the instant ex parte application to shorten time.

9

18.

Also, on May 1, 2008, defendants had stated in an email to plaintiff:

10 11

I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical.” (See Exhibit 6.)

12

19.

However, defendants had negotiated and jointly set the expert disclosure deadline with

13

plaintiff at the Rule 26(f) conference, held on January 8, 2007. Afterwards, defendants reviewed and

14

exchanged drafts of the Joint Scheduling Report, containing the same expert designation deadline. See

15

Exhibit 1.

16 17 18 19 20

20.

On January 22, 2008, almost two months earlier, Defendants had emailed plaintiff with a

request for a psychological examination of plaintiff, stating: The Defendants want Dr. Jadwin to be evaluated by independent medical examiners as to his medical and psychiatric conditions. We believe this will entail two evaluations, one as to his medical condition and to clear him medically for the psychiatric evaluation and a psychiatric evaluation. Can we work this out informally or would you prefer we simply notice it? We will do our best to accommodate his schedule.” (See Exhibit 4).

21 21.

In fact, defendants knew as early as the Rule 26(f) conference of January 8, 2007 that a

22 psychological examination of plaintiff would be necessary. Both the Scheduling Order and the Joint 23 Scheduling Report specifically made reference to the “continued effective treatment of Plaintiff’s 24 depression, anxiety, insomnia, and emotional distress” (See Scheduling Order, Doc. 29, 14:5-19; Joint 25 Scheduling Report, Doc. 26-1, 11:24-12:5) – hence the stipulation that plaintiff would not be producing 26 his treaters’ psychotherapy notes to defendants. They also contained the parties’ express stipulation to a 27 psychological examination by defendants: 28

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Plaintiff is willing to undergo psychological examination by Defendants’ qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding the timing and scope of the examination, including the specific tests to be performed, and prompt production of the subsequent report and raw data supporting the report to all parties. (Scheduling Order, Doc. 29, 14:5-19; Joint Scheduling Report, Doc. 26-1, 11:24-12:5)

4 22.

Defendants went on to periodically send plaintiff additional requests to examine plaintiff,

5 sending emails on March 25, 2008, on May 1, 2008, and on May 2, 2008. Defendants also raised the 6 issue with plaintiff during a break in deposition on April 16, 2008. These requests went unresolved. 7 Each time, Plaintiff asked for further necessary details about the exam, such as the scope and nature of 8 the exam, the identity of the examining psychiatrist, etc. However, each time, defendants had not 9 designated a forensic psychiatrist and so was unable to give plaintiff the requested information. As late 10 as May 1, 2008, defendants told plaintiff: 11 12

we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. (See Exhibit 6).

13 23.

At present, plaintiff awaits a draft stipulation from defendants regarding the exam.

14 Plaintiff asked for the draft on May 2. Plaintiff has yet to receive it. 15 24.

As for Dr. Sarkasian, defendants’ vocational rehabilitation expert, defendants knew at

16 least as early as August 6, 2007, when Initial Disclosures were exchanged, that plaintiff was claiming 17 future wage loss as damages. This is because plaintiff included in his Initial Disclosures a 77-page Rule 18 26(a)(2) report by his economic expert, complete with credentials, list of publications, fee schedule and 19 past court testimony, etc. That report also included two future offset scenarios: 1) plaintiff’s startup 20 business fails completely in which case plaintiff takes on contract pathologist work and 2) plaintiff’s 21 startup business succeeds, eventually replacing his lost income completely. There is no excuse for 22 defendants’ failure to submit any report whatsoever by Dr. Sarkasian. 23 25.

Moreover, to the extent a Rule 35 psychological exam is pertinent to Dr. Sarkasian’s

24 opinion, as defendants claim, then it was all the more incumbent on defendants to get their act together 25 and conduct the exam early. As noted above, the parties had already agreed to a defense psychological 26 exam at the Rule 26(f) conference on January 8, 2007. They have repeatedly approached plaintiff about 27 scheduling an exam since at least January 22, 2008. Yet defendants were never able to supply plaintiff 28

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with even the name of the examining psychiatrist, let alone the scope and details of the exam as required

2

by the Scheduling Order.

3

26.

If defendants are unaware of plaintiff’s theories after over 9 months of discovery, it is

4

solely because they have been dilatory. Defendants have not propounded a single set of written

5

discovery. They have not conducted the depositions of anyone other than plaintiff himself. Apparently,

6

they have not carefully read plaintiff’s Second Supplemental Complaint (Doc. 30), which lays out

7

plaintiff’s claims and allegations in excruciating detail spanning 52 pages. By contrast, plaintiff has

8

conducted 13 depositions and propounded two sets of document requests and interrogatories. It should

9

be noted that defendants do not now request an examination of plaintiff by their behavioral expert.

10

27.

Defendants have also had unequalled access to all of the information needed to timely

11

prepare a behavioral report. They have enviable access to all the former and current employees of Kern

12

Medical Center who witnessed plaintiff’s alleged “behavior” at issue in this action, without even having

13

to go through the hassle or expense of a deposition as is the case for plaintiff. And as is true with most

14

defendants, and unlike plaintiff, defendants have enviable access to all of the documents relevant to this

15

action, including but not limited to the Initial Disclosures, plaintiff’s Rule 26 supplemental disclosures

16

of January 8, 2008 and March 11, 2008. Finally, defendants have already taken the videotaped

17

deposition of Dr. Jadwin for five days, from January 8 to 10, 2008, and then again from March 11 to 12,

18

2008.

19

28.

In short, defendants can in no way make a claim of surprise or ignorance as was the case

20

in Minnard. Defendants have already had the benefit of asking for and receiving a 3-month continuance

21

on all deadlines in this action. Discovery has been ongoing for over 9 months, with less than 2 months of

22

discovery remaining. Defendants have long had all the information necessary to determine whether and

23

what kind of expert testimony was required. They were aware from January 2007 of the need for a

24

psychological exam of plaintiff. There is simply no excuse for their failure to have their expert reports

25

ready by the deadline.

26

29.

While plaintiff is indeed holding off deposing the defendants and main witnesses until the

27

last two months of discovery, plaintiff does so for good cause. On December 21, 2007, plaintiff had filed

28

with the Court a motion to compel production of documents in response to plaintiff’s requests for

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production, set one. Plaintiff had served those requests on defendants on October 11, 2007. In response,

2

defendants chose to withhold numerous critical documents based upon objections of state-based peer

3

review and personnel privacy privilege – even with respect to plaintiff’s federal law causes of action.

4

After extensive briefing by plaintiff on this important issue of the applicability of state-based privileges

5

to federal law causes of action, Magistrate Judge Theresa Goldner heard the motion on January 14,

6

2008, and took the matter under submission.

7

30.

To date, four months later and with less than two months remaining in discovery, no

8

ruling has issued. Plaintiff had delayed conducting his most critical depositions of defendants until after

9

a ruling is issued so the depositions can be conducted with the benefit of having the requested

10

documents. The importance of the documents to plaintiff’s case cannot be overstated. Plaintiff anxiously

11

awaits the ruling, which the Court has told plaintiff will issue “shortly”.

12

31.

Defendants have already requested and been granted a 3-month continuance. The Court’s

13

Order granting defendants’ prior request for a 3-month continuance of trial deadlines stated in bolded

14

letters: “No further continuances will be granted (oww).” Plaintiff has taken great pains to observe the

15

Court’s trial schedule and successfully complied with the expert designation deadline of May 5.

16

32.

If defendants are permitted to submit expert reports after May 5, 2008, various deadlines

17

will run into each other in a cascading effect, prejudicing plaintiff. For instance, June 4, 2008 is the

18

supplemental expert disclosure deadline. At present, plaintiff is not able to effectively depose

19

defendants’ experts in the absence of defendants’ reports, depriving plaintiff’s experts of information

20

about defendants’ expert opinions. The same is doubly true of defendants’ expert reports, without which

21

plaintiff’s experts cannot formulate rebuttals. Deprived of these, plaintiff’s experts will have difficulty

22

meeting the June 4 rebuttal/supplemental expert disclosure deadline.

23

33.

The prejudice for plaintiff is compounded by the fact Regina Levison, plaintiff’s medical

24

executive recruiter expert, will be traveling abroad starting May 20, 2008, returning to California on

25

June 7, 2008. Unless defendants provide plaintiff will their expert reports sufficiently in advance of May

26

20, 2008, Ms. Levison will not be able to complete her supplemental/rebuttal opinion report by June 4.

27 28

34.

If the Court were to continue the supplemental expert deadline in recognition of the

above difficulties, this shortens the time for plaintiff to conduct depositions of defendants’ rebuttal

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experts, since the discovery cut-off is July 7, 2008. If the Court then continues the discovery cutoff, this

2

shortens plaintiff’s time to prepare and file non-dispositive and dispositive motions. And so on.

3

35.

The only potentially workable solution would be a continuance of all pre-trial and trial

4

dates, which means defendants are effectively, for a second time, asking for a continuance of the entire

5

trial schedule. But plaintiff has worked diligently to prosecute this case and is anxiously awaiting his

6

day in court. Litigation is costly, time-consuming and stressful. It has put plaintiff and his family on

7

pause. It has exacerbated his disabling depression. It has strained his marriage.

8

36.

9

Counsel shall seek to obtain a necessary extension from the Court or from other counsel or parties in an action as soon as the need for an extension becomes apparent. Requests for Court-approved extensions brought on the required filing date for the pleading or other document are looked upon with disfavor.

10

Local Rule 6-144 of this Court states:

11 I declare under penalty of perjury under the laws of the United States of America that the 12 foregoing is true and correct. 13 14 Executed on May 9, 2008, at Los Angeles, California. 15 16 17 18

________________________________________ Eugene D. Lee DECLARANT

19 20 21 22 23 24 25 26 27 28

DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Attorneys for Plaintiff DAVID F. JADWIN, D.O.

6 7 8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 11

DAVID F. JADWIN, D.O., Plaintiff,

12 13

v.

14

Case No. 1:07-cv-00026-OWW-TAG EXHIBITS TO DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008

COUNTY OF KERN; et al. 15 Defendants 16 17 18 19

Date: May 12, 2008 Time: 11:00 a.m. Place: Hon. Oliver W. Wanger Courtroom 3 2500 Tulare St Fresno, CA Date Action Filed: Date Set for Trial:

January 6, 2007 December 3, 2008

20 21 22 23 24 25 26 27 28 EXHIBITS TO DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008 1

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EXHIBITS TO DECLARATION OF EUGENE D. LEE

2 3

EXHIBIT 1. Email from Defendants to Plaintiff, dated 5/21/07

4

EXHIBIT 2. Emails between Plaintiff and Defendants, dated 11/14/07

5

EXHIBIT 3. Defendants’ Stipulation & Order, dated 11/20/07

6

EXHIBIT 4. Emails between Plaintiff and Defendants, dated 1/22/08

7

EXHIBIT 5. Emails between Plaintiff and Defendants, dated 3/25/08

8

EXHIBIT 6. Emails between Plaintiff and Defendants, dated 5/1/08

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EXHIBIT 7. Emails between Plaintiff and Defendants, dated 5/1/08 to 5/2/08

10

EXHIBIT 8. Emails between Plaintiff and Defendants, dated 5/2/08

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EXHIBIT 9. Emails between Plaintiff and Defendants, dated 5/4/08 to 5/5/08

12

EXHIBIT 10. Plaintiff’s Expert Disclosure, dated 5/5/08

13

EXHIBIT 11. Defendants’ Expert Disclosure, dated 5/7/08

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBITS TO DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO MOTION FOR PERMISSION TO SERVE EXPERT REPORTS AFTER MAY 5, 2008 2

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Eugene D. Lee From: Sent: To: Cc: Subject: Attachments:

Mark Wasser [[email protected]] Monday, May 21, 2007 5:18 PM Eugene Lee; Joan Herrington Karen Barnes; MARK NATIONS draft Joint Scheduling Order 5.21.07 - Blackline draft Joint Scheduling Order 5.21.07 - Blackline.doc

Gene, First, I forgot to copy Joan on the last several e-mails. Sorry. Second, here is the JCR with my revisions. I deleted the explanatory sentences about changing the dates because I view them as unnecessary. This Report is the product of our joint conference. It does not matter that we have changed the dates since we had our telephone conference. It has been an iterative process and has continued until now. Third, I adjusted some of the new dates so they fall on weekdays and not weekends. Finally, I added a sentence about the timing of your motions to strike. I do not want the Court to think we agreed that you should bring those motions now. I believe they are premature, as I wrote in my recent e-mails, and will argue that in my opposition. I do not want to give that up by appearing to agree that they need to be brought now. Mark

1

OPP000001

Case 1:07-cv-00026-OWW-TAG

1 2 3 4 5

Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorneys for Plaintiff DAVID F. JADWIN, D.O.

6 7 8 9

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Mark A. Wasser SB# 060160 LAW OFFICES OF MARK WASSER 400 Capitol Mall Ste 1100 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. SB# 060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected] Attorneys for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND, TONI SMITH and WILLIAM ROY

10 11 12

UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14 15

DAVID F. JADWIN, D.O.,

16 17 18 19 20 21

Civil Action No. 1:07-cv-00026-OWW-TAG

Plaintiff,

JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

v. COUNTY OF KERN; et al. Defendants.

Date: Time: Location: Judge:

May 31, 2007 8:45 a.m. Courtroom 3 Hon. Oliver W. Wanger

Date Action Filed: Date Set for Trial:

January 6, 2007 None

[PLAINTIFF’S ATTORNEY REQUESTS TELEPHONIC APPEARANCE]

22 23 24

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD AND THE HONORABLE COURT: 25 Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the Court’s Order Setting 26 Mandatory Scheduling Conference entered on January 8, 2007, all parties to the above-entitled action 27 hereby submit this Joint Scheduling Report for the Mandatory Scheduling Conference currently set for 28 JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

1 OPP000002

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8:45 am, May 31, 2007. This action was originally filed on January 6, 2007, and is assigned to the

2

Honorable Oliver W. Wanger.

3 4

I.

SUMMARY OF CONTENTIONS & RELIEF SOUGHT

5 6

A. Plaintiff’s Summary 1. This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing

7 8

physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or “the

9

County”), owner and operator of Kern Medical Center (“KMC”) the health facility at which Plaintiff

10

was employed; ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of Kern

11

Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC (“Kercher”);

12

Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC (“Abraham”); Scott

13

Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and Toni Smith, Chief Nurse

14

Executive of KMC, (“Smith”), both personally and in their official capacities; and (iii) individual

15

Defendants Irwin Harris, M.D., Chief Medical Officer of KMC (“Harris”); William Roy, M.D., Chief of

16

the Division of Gynecologic Oncology at KMC (“Roy”); and DOES 1 through 10. 2. Plaintiff’s claims against his employer, Defendant County, allege violations of section 1278.5

17 18

of the Health & Safety Code1 which prohibits retaliation against a health care provider who reports

19

suspected unsafe care and conditions of patients in a health care facility; section 1102.5 of the Labor

20

Code which prohibits retaliation against an employee for reporting or refusing to participate in suspected

21

violations of the law; the California Family Rights Act (sections 12945.1, et seq., of the Government

22

Code) (“CFRA”) and the Family and Medical Leave Act (sections 2601, et seq. of the United States

23

Code) (“FMLA”) which prohibit interference with an employee’s right to medical leave and retaliation

24

for an employee’s exercise of the right to medical leave; and the Fair Employment and Housing Act

25

[subdivisions (a), (m) & (n) of section 12940 of the Government Code] (“FEHA”) which prohibits

26

discrimination against an employee with a disability, failure to provide reasonable accommodation, and

27 28

1

All statutory references are to California Codes unless otherwise specified. JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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1

failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair

2

Labor Standards Act (29 U.S.C. §§ 201, et seq.) (“FLSA”).

3

3. Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation; and

4

also sues each of the individual Defendants except for Roy and Harris, both in their personal capacity

5

and in their official capacity as members of the KMC Joint Conference Committee (“JCC”), for

6

violation of Plaintiff’s 14th Amendment of the United States Constitution right to procedural due

7

process pursuant to 42 U.S.C. § 1983 (“Due Process”).

8

4. Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment

9

interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and just relief

10

resulting from Defendants’ unlawful conduct.

11 12 13

B. Defendants’ Summary 1. Plaintiff is not a whistleblower and is not disabled. He was employed by the County of Kern

14

as a staff pathologist at Kern Medical Center, pursuant to a written agreement, and assigned to the

15

position of Chair of the Pathology Department.

16

2. During his tenure at Kern Medical Center, Plaintiff’s behavior caused several pathologists,

17

technicians and support personnel whom he criticized, intimidated, harassed and retaliated against to

18

quit and seek employment elsewhere. He alienated many of the physicians at Kern Medical Center

19

through criticism, disruptive behavior, disrespect, anger, arrogance and retaliation. Plaintiff complained

20

about procedures and policies at Kern Medical Center and interfered with patient care through

21

obstructionist behavior and secretive practices. His pathology reports were characterized by frequent

22

mistakes, changes in opinion and untimely service, all of which compromised patient care.

23

Disagreements arose between Plaintiff and many of the other physicians at Kern Medical Center

24

regarding Plaintiff’s behavior, his anger and confrontational personal style, his inaccurate and untimely

25

diagnoses, his disruptive behavior, his complaints about medical procedures, his refusal to follow even

26

his own rules, his intimidation of staff and patient management.

27

3. As a result of the stresses and disagreements that Plaintiff brought into the workplace, his

28 JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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1

injuries and illnesses, family health issues and outside business interests, Plaintiff requested and

2

received a reduced work schedule and multiple leaves of absence. He frequently worked only one or

3

two days a week and was absent from the hospital for long periods of time. Because he was neither

4

working full-time nor present in the hospital, he was removed from the position of Chair of the

5

Pathology Department and his compensation was adjusted to that of a staff pathologist without

6

departmental administrative responsibilities.

7

4. Management at Kern Medical Center counseled Plaintiff about his anger and confrontational

8

style but Plaintiff was not receptive to the counseling and the work environment continued to

9

deteriorate. Plaintiff was finally placed on paid administrative leave in an effort to allow the work

10

environment to stabilize.

11 12 13

II. PROPOSED AMENDMENTS. Plaintiff intends to file a Second Supplemental Complaint to include allegations of continuing

14

discrimination and retaliation that occurred after April 24, 2007. Plaintiff will insert the following: On

15

May 1, 2007, Defendant County notified Plaintiff that he will remain on paid administrative leave until

16

his contract expires on October 4, 2007; and that, contrary to its prior and customary practice, Defendant

17

County does not intend to renew his employment contract. Although Plaintiff is no longer restricted to

18

the confines of his home during working hours, he still may not enter KMC’s premises or access his

19

office without prior written permission. The numbering of the following paragraphs will be adjusted

20

accordingly. Plaintiff has already provided Defendants with the draft Second Supplemental Complaint in

21

the form in which Plaintiff intends to file it for Defendants’ prior review.

22

Defendants intend to file an Amended Answer that (i) with regard to the third affirmative

23

defense, alleges the specific privileges and immunities relied on with greater particularity, (ii) with

24

regard to the fourth affirmative defense, alleges the specific provisions of Cal. Civ. Code § 47 relied on

25

with greater particularity, and (iii) alleges the ninth affirmative defense (qualified immunity) with

26

greater particularity, as well as additional non-material changes. Defendants have already provided

27

Plaintiff with the draft Amended Answer in the form in which Defendants intend to file it for Plaintiff’s

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prior review.

2

Based on the foregoing, each of the parties hereby stipulates to the filing of the other’s

3

supplemented/amended pleadings and hereby respectfully request the order of the Court granting the

4

parties leave to file their respective amended/supplemented pleadings.

5

It should be noted that Plaintiff intends to file a motion to strike certain of Defendants’

6

affirmative defenses contained in the Amended Answer proposed to be filed as having insufficient bases

7

in law. The parties have already met and conferred regarding the affirmative defenses at issue but have

8

not been able to reach a resolution.

9 III. SUMMARY OF UNCONTESTED AND CONTESTED FACTS.

10 11 12 13 14

A. Uncontested Facts 1. At all material times, Defendant Kern County was a local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is operating in Kern County, California. 2. During the entire course of Plaintiff’s employment, Defendant Kern County has continuously

15

been an employer within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t Code §

16

12945.2(b)(2)] FEHA [Gov’t Code § 12926(d)], and FLSA [29 U.S.C. §203] engaged in interstate

17

commerce, and regularly employing more than fifty employees within seventy five miles of Plaintiff’s

18

workplace.

19 20 21

3. Defendant Bryan was Chief Executive Officer of KMC and a resident of California during most of the time alleged in the Complaint. 4. At all material times, Defendant Eugene Kercher was a citizen of California, a resident of

22

Kern County, California, and President of KMC Medical Staff, and a member of the KMC Joint

23

Conference Committee (“JCC”).

24 25 26 27

5. At all material times, Defendant Irwin Harris was a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at KMC, and a non-voting member of the JCC. 6. At all material times, Defendant Jennifer Abraham was a citizen of California, and a resident of Kern County, California and Immediate Past President of KMC Medical Staff.

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1 2

8. At all material times, Defendant Toni Smith was a citizen of California, and a resident of Kern County, California, and Chief Nurse Executive of KMC, and a member of the JCC. 9. At all material times, Defendant William Roy was a citizen of California, and a resident of Kern County, California and Chief of the Division of Gynecologic Oncology at KMC.

7 8 9 10 11 12

Page 10 of 80

Kern County, California, President-Elect of KMC Medical Staff, and a member of the JCC.

5 6

Filed 05/09/2008

7. At all material times, Defendant Scott Ragland was a citizen of California, and a resident of

3 4

Document 125-3

10. Plaintiff has continuously been an employee of Defendant Kern County since October 24, 2000. 11. Plaintiff is a pathologist whom Defendant County hired as a pathologist at KMC and appointed to the position of Chair of the Pathology Department. 12. Plaintiff was compensated and provided with certain benefits pursuant to a written employment agreement, the terms of which speak for themselves.

13

13. Defendant Kern County placed Plaintiff’s initial salary level at Step C.

14

14. Defendants expected Plaintiff to be an effective member of the physicians’ staff at KMC and

15 16 17 18 19

to contribute to the overall improvement of the hospital. 15. Plaintiff requested and received leaves of absence and reduced work schedules, the terms and conditions of and reasons for which are memorialized in writings that speak for themselves. 16. Plaintiff’s former attorney sent a letter to Kern County Counsel Bernard Barmann and Mr. Barmann met with Plaintiff on or about February 9, 2006.

20

17. Defendant Bryan and Plaintiff exchanged written communications regarding Plaintiff’s

21

reduced work schedule and requests for leaves of absence. Plaintiff met with Defendant Bryan and

22

others to discuss those subjects.

23

18. Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff’s tenure

24

and performance as Chair of the Pathology Department at KMC. All the writings speak for themselves.

25 26 27

19. On or about July 10, 2006, the JCC voted to remove Plaintiff from his position as Chair of the Pathology Department at Kern Medical Center. 20. Plaintiff was removed from his position as Chair of the Pathology Department in part

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because he was neither working full-time nor present in the hospital.

2 3

Document 125-3

21. Defendant County subsequently amended Plaintiff’s employment agreement to reduce Plaintiff’s base compensation.

4

22. Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department.

5

23. Plaintiff returned to work as a staff pathologist at KMC on October 4, 2006.

6

24. Plaintiff exchanged written correspondence with KMC Interim CEO David Culberson and

7

those writings speak for themselves.

8 9 10 11 12 13 14 15 16

25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to this date. 26. Defendant County has provided Plaintiff with the information he requested from the computer that had been previously assigned to him. 27. Plaintiff filed a claim with Defendant Kern County and the claim was rejected. B. Contested Facts 1. Defendants contest all allegations and averments in the First Supplemented Complaint other than those enumerated in Section A, Uncontested Facts. 2. Plaintiff contests Defendants’ averment that Plaintiff disrupted the October, 2005, Monthly

17

Oncology Conference and prevented appropriate discussion of case management and that other

18

physicians at Kern Medical Center, including some of the Defendants, were concerned about Plaintiff’s

19

conduct and with his interference with patient care.

20 21

3. Plaintiff contests all averments contained in the Answer to the First Supplemented Complaint other than those stated in Section A, Uncontested Facts.

22 23

IV. SUMMARY OF UNDISPUTED AND DISPUTED LEGAL ISSUES

24 25 26

A. Undisputed issues 1. None

27 28 JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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B. Disputed Issues 1. Whether this Court has or should exercise supplemental jurisdiction over Plaintiff’s state claims pursuant to 28 U.S.C. § 1367.

4

2. Whether Defendant Kern County violated Cal. Health & Safety Code § 1278.5, entitling

5

Plaintiff to damages for retaliation for reporting his concerns about the health and safety of patients.

6

3. Whether Defendant Kern County violated Cal. Lab. Code § 1102.5, entitling Plaintiff to

7 8 9 10 11 12 13 14 15 16 17 18

damages for retaliation against him for reporting suspected illegal acts. 4. Whether Defendant Kern County violated Cal. Gov’t Code §§ 12945.1, et seq and 2 C.C.R. § 7297.7(a), entitling Plaintiff to damages for retaliation for exercising his right to CFRA medical leave. 5. Whether Defendants Kern County and Bryan violated 29 U.S.C. §§ 2601, et seq., entitling Plaintiff to damages for interference with his FMLA Rights. 6. Whether Defendant Kern County violated Cal. Gov’t Code §§ 12945.1, et seq., entitling Plaintiff to damages for violation of CFRA Rights. 7. Whether Defendant Kern County violated Cal. Gov’t. Code § 12940(a) entitling Plaintiff to damages for disability discrimination. 8. Whether Defendant Kern County violated Cal. Gov’t Code § 12940(m) entitling Plaintiff to damages for failure to provide reasonable accommodation, and an injunction requiring compliance. 9. Whether Defendant Kern County violated Cal. Gov’t Code § 12940(n) entitling Plaintiff to

19

damages and injunctive relief for failure to engage in good faith in an interactive process, and an

20

injunction requiring compliance.

21

10. Pursuant to 42 U.S.C. § 1983, whether Defendants Bryan, Kercher, Ragland, Abraham, and

22

Smith, both personally and in their respective official capacities, violated the 14th Amendment of the

23

U.S. Constitution entitling Plaintiff to damages and injunctive relief for procedural due process

24

violations.

25 26 27

11. Whether Defendants Kern County, Roy, and Harris violated Cal. Civ. Code §§ 45- 47 entitling Plaintiff for damages for defamation. 12. Whether Defendant Kern County violated 29 U.S.C. §201 et seq. entitling Plaintiff to

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1

damages for wages lost during periods when he was ready, willing, and able to work, but was denied

2

reduced schedule medical leave, and forced to take full time leave; and an injunction requiring

3

compliance.

4 5 6

V.

STATUS OF ALL MATTERS BEFORE THE COURT

There are no matters presently set before the Court other than this Scheduling Conference.

7

However, Plaintiff intends to file Motions to Strike Affirmative Defenses from Defendants’ Answer to

8

the Second Supplemental Complaint, requesting this Court strike Defendants’ Fifth Affirmative Defense

9

(“Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and

10

unfriendly and that Plaintiff’s behavior contributed to and was the direct and proximate cause of any

11

stresses, disabilities or injuries that Plaintiff believes he sustained”), and Seventh Affirmative Defense

12

(Plaintiff’s claims are barred by the statute of limitations established in Cal. Civ. Proc. Code § 335.1

13

(assault, battery, injury, wrongful death)). Plaintiff believes this issue needs to be addressed before

14

discovery can commence whereas Defendants believe it should be addressed after discovery, at or

15

before the Pretrial Conference.

16 VI. DISCOVERY PLAN

17 18 19 20 21

At the Rule 26(f) conference, the parties tentatively agreed on the below dates. However, following the conference, it became apparent over the course of the parties’ numerous meet and confer discussions that Plaintiff will need to file a Motion to Strike at least two of Defendants’ affirmative defenses (See Section V supra). Given that the defenses at issue remain uncertain, and therefore the scope of discovery also remains indefinite, the parties propose the following delayed schedule in order to accommodate Plaintiff’s pending Motion to Strike.

22 A. Rule 26(a)(1) Initial Disclosure Deadline 23 [August 46, 2007]. 24 25 B. Discovery Subjects, Deadlines, Limitations, Phasing, Etc. 26 1. Expert Deadlines 27 Expert Disclosure Deadline:

[February 34, 2008]

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Supplemental Expert Disclosure Deadline: [February 1718, 2008] 2. Discovery Deadlines

3

Non-Expert:

[February 34, 2008]

4

Expert:

[April 15, 2008]

5

3. Subjects of Discovery: Plaintiff believes discovery will be needed on: (i) the various patient

6

care quality and regulatory non-compliance issues with respect to which Plaintiff blew the whistle, (ii)

7

KMC’s policies and procedures regarding reasonable accommodation of disabled employees, engaging

8

in interactive process with disabled employees, FMLA/CFRA leave, discrimination/retaliation against

9

whistleblowing employees, reduced work schedule, etc., (iii) the circumstances surrounding and

10

decision-making behind the various adverse employment actions taken against Plaintiff, including:

11

reprimand of Plaintiff in connection with his presentation at the October 2005 oncology conference,

12

withdrawal of reduced work schedule, demotion and salary reduction, involuntary leave, non-renewal of

13

contract, etc., and (iv) the circumstances surrounding and decision-making behind Defendant Roy’s,

14

Harris’s and Does 1 through 10’s defamation of Plaintiff and Defendant County’s ratification thereof.

15

Defendants believe discovery will be needed regarding Plaintiff’s education, qualifications and training,

16

his employment history, his outside business interests, specific events that transpired during Plaintiff’s

17

employment, the relationships between Plaintiff and the other physicians and staff at KMC, the turnover

18

and departures of physicians and staff from the Pathology Department during Plaintiff’s chairmanship,

19

the circumstances of and reasons for Plaintiff’s leaves of absence and reduced work schedule and the

20

reasons why Plaintiff claims he is disabled.

21

4. Phasing: The parties are not presently aware of any reason to phase discovery.

22

5. Limitations to or Focus upon Particular Issues: The parties are not presently aware of any

23 24

limitations on discovery. 6. Depositions: The parties have agreed that September 2, 2007 is the first possible date to send

25

out deposition notices. The parties have agreed that September 23 , 2007 is the first possible date for

26

oral depositions. Because most depositions will be held in Bakersfield and all counsel are out-of-town,

27

the parties have agreed to schedule depositions in blocks of multiple depositions at a single time to make

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1

travel as cost-effective as possible. The parties will set depositions on Tuesdays, Wednesdays and

2

Thursdays and will allow enough time between settings to allow adequate preparation. Shorter

3

depositions may be scheduled for the same day. The parties may videotape and/or audio record

4

depositions, and the video camera may be operated by the attorneys or their employees.

5 6 7

C. Electronic Discovery The parties have in their custody and possession e-mails related to issues in this action and have

8

each made requests of the other that all such e-mails be preserved and disclosed. The parties shall

9

produce e-mails to each other in Microsoft Outlook format. The parties are not presently aware of any

10

other electronic discovery issues.

11 12 13

D. Confidentiality Orders Documents to be produced include patient medical records that contain confidential patient

14

health care information, medical peer review records that are confidential pursuant to California

15

Evidence Code section 1157, some documents that are protected by the attorney/client privilege and

16

some documents that include attorney work-product and trial preparation materials. The Defendants are

17

required to redact all confidential patient information before producing any patient records and will do

18

so. The parties hereby agree that Defendants’ production of certain specified peer review records

19

without redaction shall not be construed as a waiver of the peer review privilege in general or a waiver

20

with regard to any other documents or person. The parties hereby agree that Defendants’ production of

21

certain specified relevant memos and e-mails that were sent to legal counsel for the County of Kern, as

22

well as other, non-lawyer, County employees, shall not be construed as a waiver of the attorney/client

23

privilege. The parties hereby agree that Defendants’ production of certain specified documents that

24

include attorney work-product and trial preparation materials shall not constitute a waiver of either the

25

work-product or trial preparation materials privileges as to any other materials.

26 27

The parties hereby agree that, in order to preserve the confidentiality required for continued effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s

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1

treating psychiatrists/psychologists shall not be required to produce their actual treatment notes, but

2

instead shall produce a summary of their treatment of Plaintiff’s depression and emotional distress,

3

including their diagnoses and prognoses, and the basis for their opinion, including raw data of any

4

psychological testing. Plaintiff is willing to undergo psychological examination by Defendants’

5

qualified expert pursuant to Federal Rule of Civil Procedure Rule 34 subject to a stipulation regarding

6

the timing and scope of the examination, including the specific tests to be performed, and prompt

7

production of the subsequent report and raw data supporting the report to all parties.

8 9

The parties are not presently aware of any other issues relating to claims of privilege or of protection as trial-preparation material.

10 11

E. Changes in Limitations on Discovery

12

Given the number of defendants and witnesses and the number and complexity of the issues,

13

Plaintiff anticipates needing relief from the discovery limitations of Federal Rule of Civil Procedure

14

30(a)(2)(A) (10 depositions per side) and Rule 33(a) (no more than 25 interrogatories per party).

15

Defendants do not object to granting Plaintiff relief from that limitation. Defendants anticipate that the

16

deposition of the Plaintiff will take up to 21 hours because of the quantity of material that needs to be

17

covered. Defendants therefore request relief from FRCP 30(d)(2),(1 day of 7 hours per deposition).

18

Plaintiff does not object to Defendants’s request; provided, however, that no single day of Plaintiff’s

19

deposition shall exceed 7 hours. The parties are not presently aware of a need to change any other

20

limitations on discovery.

21 22 23 24

F. Other Orders under Rules 26(c) or 16(b) and (c) The parties are not presently aware of a need for any protective or other orders other than as provided herein.

25 26

VII. AGREED-UPON DATES

27

At the Rule 26(f) conference, the parties tentatively agreed on the below dates. However,

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1

following the conference, it became apparent over the course of the parties’ numerous meet and confer

2

discussions that Plaintiff will need to file a Motion to Strike at least two of Defendants’ affirmative

3

defenses (See Section V supra). Given that the defenses at issue remain uncertain, and therefore the

4

scope of discovery also remains indefinite, the parties propose the following delayed schedule in order

5

to accommodate Plaintiff’s pending Motion to Strike.

6 7 8

A. Pre-Trial Motions 1. Non-Dispositive Motions

9

Filing Deadline:

[May 35, 2008]

10

Heard no later than:

[June 4, 2008]

11

2. Dispositive Motions

12

Filing Deadline:

[June 2, 2008]

13

Heard no later than:

[August 6, 2008]

14 15

B. Pre-Trial Conference

16

1. Settlement Conference:

[April 15, 2008]

17

2. Pre-Trial Conference:

[October 43, 2008]

18 19 20

C. Trial Trial Date:

[November 23, 2008]

21 22 23 24

VIII. SETTLEMENT The parties are interested in exploring the opportunity to settle this matter before incurring additional attorney fees and costs. Private mediation or an Early Case Conference might be beneficial.

25 26 27

IX. TRIAL BY JURY Plaintiff has requested a jury trial on all possible issues and claims.

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1 2 3

X.

ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED

The parties estimate that trial will take 12-15 days.

4 5 6

XI. BIFURCATION OF TRIAL Neither party anticipates the need for bifurcation.

7 XII. RELATED MATTERS 8 The parties are unaware of any related matters pending in this Court or any other court, including 9 any bankruptcy court. 10 11 RESPECTFULLY SUBMITTED on May 24, 2007. 12 13 14 15 16 17

/s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

18 19 20 21 22 23 24

/s/ Mark A. Wasser, Calif. SB# 060160 LAW OFFICES OF MARK WASSER 400 Capitol Mall, Ste. 1100 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Attorneys for Defendants COUNTY OF KERN, PETER BRYAN, IRWIN HARRIS, EUGENE KERCHER, JENNIFER ABRAHAM, SCOTT RAGLAND, TONI SMITH and WILLIAM ROY

25 26 27 28 JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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EXHIBIT 2. Emails between Plaintiff and Defendants, dated 11/14/07

Page 19 of 80

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Eugene D. Lee From: Sent: To: Cc: Subject:

Eugene D. Lee [[email protected]] Wednesday, November 14, 2007 11:30 AM '[email protected]' 'Joan Herrington' Jadwin/KC: Stip Extension & Depo location

Mark, In followup to our RPD1 meet and confer call of this morning, we’ll agree to a three (3) month extension on trial, discovery cutoff, expert disclosure, dispositive & non-dispositive motion cutoffs and other deadlines as set forth in the Scheduling Order in order to accommodate your client’s doc production time requirements. Please let us review the stip you draft before you file it. As we discussed, any discussion we have had thus far of production deadlines is contingent upon Judge Wanger signing the stip in the form agreed to. Regarding the deposition location, we’d like to hold the Dec 4,5,6 depos at our court reporters’ office for now. But at the time of the Dec 4-6 depos, Joan and I wondered whether we would be permitted to physically access and view the KMC annex conference room so that we can see if it will work for our depo purposes (adequate electrical outlets, ventilation, lighting, space, etc.), particularly since we are videotaping. Please let us know if this will be possible. Also, please let us know whether KMC will permit Dr. Jadwin onto the premises to attend any depos that might be held at that conference room as well as the exact location/address of the conference room. We’ll send a more extensive meet and confer followup letter shortly. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ LAW OFFICE OF EUGENE LEE EMPLOYMENT LAW 555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com  

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

1

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Eugene D. Lee From: Sent: To: Subject: Attachments:

Mark Wasser [[email protected]] Wednesday, November 14, 2007 5:15 PM Eugene Lee; Joan Herrington Stipulation To continue trial and pre-trial dates 11.14.07 Stipulation To continue trial and pre-trial dates 11.14.07.doc

Gene and Joan, Here is a draft stipulation for your review. Mark

1

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EXHIBIT 3. Defendants’ Stipulation & Order, dated 11/20/07

Page 22 of 80

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 125-3 80

1 2 3 4 5 6 7 8

Filed Filed 11/20/2007 05/09/2008

Page Page 123ofof3 80

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barman, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

9 10 11 12 13 14 15 16 17 18

Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy Eugene D. Lee SB# 236812 LAW OFFICES OF EUGENE LEE 555West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 E-mail: [email protected] Joan Herrington SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminister Lane Oakland, CA 94602 Phone: (510) 530-4078 Fax: (510) 530-4725 E-mail: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

19 20

Attorneys for Plaintiff DAVID F. JADWIN, D.O.

21

UNITED STATES DISTRICT COURT

22

EASTERN DISTRICT OF CALIFORNIA

23

DAVID F. JADWIN, D.O.

24 25 26 27 28

Plaintiff, vs. COUNTY OF KERN, et al., Defendants.

) ) ) ) ) ) ) ) ) )

Case No.: 1:07-cv-00026 OWW TAG STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER Complaint Filed: January 5, 2007 Trial Date: August 26, 2008 Note: Dates on last page have been changed

1 STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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Filed Filed 11/20/2007 05/09/2008

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WHEREAS discovery is taking substantially longer than the parties anticipated because

2

the collection, duplication, redaction and production of medical records and other documents

3

within Kern Medical Center in response to Plaintiff’s request for the production of documents is

4

taking considerable time; and

5 6 7 8 9 10 11

WHEREAS the parties are working together in good faith to address discovery issues as they arise; and WHEREAS it has become evident that the parties’ planned discovery will not be completed by the current discovery cut-off; and WHEREAS the parties believe the discovery cut-off should be extended approximately three months and that trial and the other pre-trial dates should be continued accordingly; NOW THEREFORE IT IS HEREBY STIPULATED, by and between the parties hereto

12

through their respective counsel, that trial, the pre-trial conference, the settlement conference, the

13

deadline for filing dispositive and non-dispositive motions, the expert and supplemental expert

14

disclosure deadlines, and the discovery cut-off should all be extended approximately three

15

months.

16 17

Dated: November 15, 2007

LAW OFFICES OF MARK A. WASSER

18 19

By:

20

/s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

21 22

Dated: November 15, 2007

LAW OFFICE OF EUGENE LEE

23 24 25

By:

/s/ Eugene D. Lee (as authorized on 11/15/07) Eugene D. Lee Attorney for Plaintiff, David F. Jadwin, D.O.

26 27 28 2 STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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ORDER The parties having stipulated as hereinabove set forth and good cause appearing therefor; IT IS HEREBY ORDERED, that the scheduling conference order be amended and that the dates of trial, pre-trial conference, settlement conference, dispositive motion cut-off, nondispositive motion cut-off and discovery be vacated and that new dates be set as follows: Expert Disclosure: Supplemental Expert Disclosure: Discovery Cut-Off: Non-Dispositive Motion Cut-Off: Non-Dispositive Motion Hearing: Dispositive Motion Cut-Off: Dispositive Motion Hearing: Settlement Conference: Pre-Trial Conference: Trial :

[May 5, 2008] [June 4, 2008] [July 7, 2008] [July 21, 2008] [August 22, 2008] [August 4, 2008] [September 8, 2008] [May 7, 2008] [October 14, 2008] [December 3, 2008]

12 13

No further continuances will be granted (oww)

14 15

Dated: November 17 , 2007

UNITED STATES DISTRICT COURT

16 17 18

By:/s/ OLIVER W. WANGER The Honorable Oliver W. Wanger United States District Judge

19 20 21 22 23 24 25 26 27 28 3 STIPULATION TO CONTINUE TRIAL AND PRE-TRIAL DATES AND ORDER

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EXHIBIT 4. Emails between Plaintiff and Defendants, dated 1/22/08

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Eugene D. Lee From: Sent: To: Subject: Attachments:

Eugene D. Lee [[email protected]] Tuesday, January 22, 2008 11:13 AM '[email protected]' Jadwin/KC: Medical Exam Stipulation - Authenticating documents_071126.doc

Follow Up Flag: Flag Status:

Follow up Completed

Mark, Let me look into this further. It would help if you gave me a clearer idea of what kind of tests would be conducted and the scope of the examinations. Also, Plaintiff has not claimed any physical injuries as a result of Defendants’ acts so I don’t believe Plaintiff would agree to a physical examination of any sort. While we’re on the topic of stipulations, I have not heard a response from you regarding the proposed stipulation on authenticity of documents which Plaintiff had sent you months ago. You had indicated you would agree to it but there was never any followup. Please let me know your thoughts. It is attached.

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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From: Mark Wasser [mailto:[email protected]] Sent: Tuesday, January 22, 2008 9:56 AM To: Eugene Lee Subject: Gene,

1

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The Defendants want Dr. Jadwin to be evaluated by independent medical examiners as to his medical and psychiatric conditions. We believe this will entail two evaluations, one as to his medical condition and to clear him medically for the psychiatric evaluation and a psychiatric evaluation. Can we work this out informally or would you prefer we simply notice it? We will do our best to accommodate his schedule. Mark

Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]

2

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EXHIBIT 5. Emails between Plaintiff and Defendants, dated 3/25/08

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Eugene D. Lee Eugene D. Lee [[email protected]] Tuesday, March 25, 2008 11:27 AM '[email protected]' DME / Perez Video

From: Sent: To: Subject:

Mark, I’m working on getting you that video. Regarding the IME, I need more information. Who is the examiner going to be, scope of exam, kinds of tests to be performed, etc. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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From: Mark Wasser [mailto:[email protected]] Sent: Tuesday, March 25, 2008 10:22 AM To: Eugene Lee Subject: Two things Gene, First, I want a copy of the video of the Patricia Perez deposition. Can you please prepare one for me? Second, we want to set Dr. Jadwin’s independent medical exam. Would you like me to give you some dates to choose from? Let me know. Thanks. Mark 1

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Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]

2

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EXHIBIT 6. Emails between Plaintiff and Defendants, dated 5/1/08

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Eugene D. Lee From: Sent: To: Subject:

Eugene D. Lee [[email protected]] Thursday, May 01, 2008 10:54 PM '[email protected]' Continuance of expert deadlines/DME

Mark,    First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s  surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr.  Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly  thereafter,  I asked you for further details regarding the scope of the defense mental exam, type of tests to be  performed, etc., and never received them. To date, I still have not received them.    Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to  accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear  that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree  to yet another stipulation by defendant for a 1 month continuance on expert deadlines.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 6:02 PM To: [email protected] Subject: RE: Expert disclosures Gene, I do not think it will affect disclosure of supplemental experts although it might affect the timing of their reports. We can do it without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I am willing to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily 1

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accommodate a short time after July 7 for expert depositions. I am not saying we have to do that, only that I am open to it. As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. I think if we delayed disclosure of the reports for about a month, it would be enough. Supplemental reports could be delayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reports in time for depositions and I we don’t need them before then. I doubt it will have any effect on pretrial or trial preparation. There is nothing I would do with your reports now, even if I had them. Expert depositions are at least two months away. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:47 PM To: [email protected] Subject: RE: Expert disclosures

Mark,    I’m thinking about it. This is not a simple issue. A stip on delaying disclosure of expert reports has ramifications for the  rebuttal expert designation deadline (June 4). And the discovery cutoff is only two months away (July 7). What you’re  proposing is not that simple – it compresses everything. Plaintiff has a lot of depos still left to conduct.     Also, ultimately, I question whether we could stip to this without Wanger’s blessing.    What kind of a delay do you have in mind? How long? That would be helpful.     

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:43 PM To: [email protected] Subject: RE: Expert disclosures

Filed 05/09/2008

Page 35 of 80

I know what it says, Gene. That is why I quoted the language about “otherwise stipulated” in my last e-mail. I take it from this that you are saying no my request that we agree to postpone the exchange of reports for a short time until we can complete more discovery?

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:29 PM To: [email protected] Subject: RE: Expert disclosures

Mark,    Take a look at Rule 26   

USCS Fed Rules Civ Proc R 26 (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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Califocnia Laboc &  Emplo,ment Law 0109 111 Be Taking A Brief Break from Posting

       

April 11, '00'

" ... "

,y "'oo,,"..

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:03 PM To: [email protected] Subject: RE: Expert disclosures Gene, We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtually nothing to go on. He has asked us for some information which we will get via discovery. Until we have completed more discovery, there is no basis for rendering any definitive opinions. I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably start exchanging reports in a month or so. But, we cannot do it now. And, as I wrote, we do not expect you to, either. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 4:56 PM To: [email protected] Subject: RE: Expert disclosures

Mark,    We’ve had over 8 months of discovery in this action. Only 2 months remain. Let me think about this and get back to you.  In any case, what you propose is a variation on Judge Wanger’s Scheduling Order and I believe it would in any case  require a stipulation and order signed by Judge Wanger. As you know, in his last order granting continuation of the trial  and other dates, he wrote in bold that no further continuances would be granted. I think he was making clear that we  shouldn’t come to him for any more requests for extensions.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 4:21 PM To: Eugene Lee Subject: Expert disclosures Gene, The new schedule we have from the Court designates May 5 as the date for disclosure of experts. As you know, discovery does not close until July 7. Trial is not until December. Rule 26 contemplates disclosure of expert reports at least 90 days before trial. We are over 180 days away from trial now. It is too early to disclose expert reports and our experts cannot complete meaningful reports until discovery is closer to completion. Thus, we cannot disclose reports or final conclusions yet. We do not expect you to disclose them, either. I suggest we disclose names and other available information, like CVs and rates and subject of testimony, but defer disclosure of reports until meaningful reports can be prepared. Mark

Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]

5

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EXHIBIT 7. Emails between Plaintiff and Defendants, dated 5/1/08 to 5/2/08

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Eugene D. Lee From: Sent: To: Subject:

Mark Wasser [[email protected]] Friday, May 02, 2008 11:23 AM [email protected] RE: Continuance of expert deadlines/DME

Gene, Another thought. So that we do not have your expert reports before you have ours, I suggest you might want to hold onto you reports and not disclose them until our motion for partial relief from the scheduling order is resolved. If the Court gives us a new disclosure date, we can disclose them then and you will not be prejudiced by our experts having had your reports while they prepare their own. You might want to consider this. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, May 02, 2008 10:16 AM To: [email protected] Subject: RE: Continuance of expert deadlines/DME

Mark,    I already explained the prejudice to plaintiff.     We’re bumping up against a lot of deadlines now. June 4 for supplemental expert designation, July 7 discovery cutoff,  August 4 dispositive motion filing deadline. Just as a for instance, if we take depos of experts after July 7 as you suggest,  the delay in getting the depo transcripts will cause problems in terms of filing dispositive motions by August 4. What  you’re proposing will compress the entire pre‐trial schedule for plaintiff and the only fair relief will be a continuance of  all pre‐trial deadlines, which plaintiff is not able to agree to. Plaintiff already agreed to your request for a 3 month  continuance.    Reports are the critical element in Rule 26 expert disclosure. In my view, they’re practically synonymous. You’ve had  more than 9 months of discovery to get your expert reports ready. Plaintiff is ready and able to meet the deadline.  You’ve waited until just a few days prior to the expert designation deadline to propose a delay. That’s unfortunate but I  don’t see how that is plaintiff’s problem.    And perhaps most importantly, Judge Wanger has made it crystal clear that no further extensions will be granted. I’m  not about to go re‐jiggering the trial schedule set by Judge Wanger. In my view, your asking him to do so is ill‐advised.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com   1

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From: Mark Wasser [mailto:[email protected]] Sent: Friday, May 02, 2008 9:58 AM To: [email protected] Subject: RE: Continuance of expert deadlines/DME Gene, I think I have no alternative but to request partial relief from the scheduling order. I will not request an extension of the disclosure of experts, just an extension of the requirement to deliver reports. We cannot prepare reports now, given the state of discovery. Again, I cannot imagine any prejudice but, if you won’t agree, you won’t agree. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 10:54 PM To: [email protected] Subject: Continuance of expert deadlines/DME

Mark,    First, I do not have any recollection whatsoever of your delaying the defense mental exam because of Dr. Jadwin’s  surgery. Dr. Jadwin’s surgery became an issue only in relation to the setting of his deposition and nothing else. Dr.  Jadwin’s deposition was held on March 11/12, 2008. What I do recall is that, beginning January 22, 2008 and repeatedly  thereafter,  I asked you for further details regarding the scope of the defense mental exam, type of tests to be  performed, etc., and never received them. To date, I still have not received them.    Plaintiff previously agreed to defendants’ request for a 3 month continuance of pre‐trial and trial dates in order to  accommodate KMC’s logistical difficulties in gathering and producing documents. Judge Wanger has made it very clear  that no further extensions would be granted. In any case, after giving your request much thought, Plaintiff cannot agree  to yet another stipulation by defendant for a 1 month continuance on expert deadlines.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 2

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FDocument a x : ( 2 1 3 ) 5125-3 9 6 - 0 4 8 7 Filed E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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April 11, , . . .

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 6:02 PM To: [email protected] Subject: RE: Expert disclosures Gene, I do not think it will affect disclosure of supplemental experts although it might affect the timing of their reports. We can do it without compressing discovery. We need to depose experts anyway and they are likely to be the last depositions. I am willing to stipulate that we can take expert depositions after the cut-off of normal discovery. We could easily accommodate a short time after July 7 for expert depositions. I am not saying we have to do that, only that I am open to it. As far as how long I would like to postpone the exchange of expert reports, it may depend on the expert. For example, we need to do the IME on Dr. Jadwin. I have the information you have requested about the scope of examination, etc. and will get that to you next week. As soon as we can set that, I will know how long it will take for the examining physician to render his report. I delayed setting that, you will recall, because you had told me Dr. Jadwin was going to have surgery. I think if we delayed disclosure of the reports for about a month, it would be enough. Supplemental reports could be delayed a month, too. That would put us at about the time we will be taking expert depositions. We will have the reports in time for depositions and I we don’t need them before then. I doubt it will have any effect on pretrial or trial preparation. There is nothing I would do with your reports now, even if I had them. Expert depositions are at least two months away. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:47 PM To: [email protected] Subject: RE: Expert disclosures

Mark,    I’m thinking about it. This is not a simple issue. A stip on delaying disclosure of expert reports has ramifications for the  rebuttal expert designation deadline (June 4). And the discovery cutoff is only two months away (July 7). What you’re  proposing is not that simple – it compresses everything. Plaintiff has a lot of depos still left to conduct.     Also, ultimately, I question whether we could stip to this without Wanger’s blessing.    What kind of a delay do you have in mind? How long? That would be helpful.     

Sincerely, 3

OPP000032

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 42 of 80

Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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Califocnia Laboc &  Emplo,ment Law 0109 111 Be Taking A Brief Break from Posting April 11, '00'

" ... "

,y ...oo,,"..

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:43 PM To: [email protected] Subject: RE: Expert disclosures I know what it says, Gene. That is why I quoted the language about “otherwise stipulated” in my last e-mail. I take it from this that you are saying no my request that we agree to postpone the exchange of reports for a short time until we can complete more discovery?

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:29 PM To: [email protected] Subject: RE: Expert disclosures

Mark,    Take a look at Rule 26   

USCS Fed Rules Civ Proc R 26 (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; 4

OPP000033

Case 1:07-cv-00026-OWW-TAG Document 125-3 Filed 05/09/2008 Page 43 of 80 (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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Califocnia Laboc & Emplo,ment Law 0109 111 Be Taking A Brief Break from Posting April 11,

'00'

n ..."

'Y " ' " , , " ..

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 5:03 PM To: [email protected] Subject: RE: Expert disclosures Gene, We are not proposing a postponement of the disclosure itself. Only the reports. For example, our economist has virtually nothing to go on. He has asked us for some information which we will get via discovery. Until we have completed more discovery, there is no basis for rendering any definitive opinions. I think someone in Wanger’s chambers goofed with the May 5 date, frankly. It is over 180 days before trial. That is too early. 90 days is typical. We can probably start exchanging reports in a month or so. But, we cannot do it now. And, as I wrote, we do not expect you to, either. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Thursday, May 01, 2008 4:56 PM To: [email protected] Subject: RE: Expert disclosures

Mark,    We’ve had over 8 months of discovery in this action. Only 2 months remain. Let me think about this and get back to you.  In any case, what you propose is a variation on Judge Wanger’s Scheduling Order and I believe it would in any case  require a stipulation and order signed by Judge Wanger. As you know, in his last order granting continuation of the trial  5

OPP000034

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 44 of 80

and other dates, he wrote in bold that no further continuances would be granted. I think he was making clear that we  shouldn’t come to him for any more requests for extensions.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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Califocnia Laboc & Emplo,ment Law 0109 111 Be Taking A Brief Break from Posting April 11, '00'

" ... "

,y ...oo,,"..

From: Mark Wasser [mailto:[email protected]] Sent: Thursday, May 01, 2008 4:21 PM To: Eugene Lee Subject: Expert disclosures Gene, The new schedule we have from the Court designates May 5 as the date for disclosure of experts. As you know, discovery does not close until July 7. Trial is not until December. Rule 26 contemplates disclosure of expert reports at least 90 days before trial. We are over 180 days away from trial now. It is too early to disclose expert reports and our experts cannot complete meaningful reports until discovery is closer to completion. Thus, we cannot disclose reports or final conclusions yet. We do not expect you to disclose them, either. I suggest we disclose names and other available information, like CVs and rates and subject of testimony, but defer disclosure of reports until meaningful reports can be prepared. Mark

Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]

6

OPP000035

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

EXHIBIT 8. Emails between Plaintiff and Defendants, dated 5/2/08

Page 45 of 80

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 46 of 80

Eugene D. Lee Mark Wasser [[email protected]] Friday, May 02, 2008 5:59 PM [email protected] RE: Psychiatric evaluation of Dr. Jadwin

From: Sent: To: Subject: Gene,

Dr. Jadwin’s mental condition is being examined. That is the scope of the interviews. The psychiatrist will be present. You can have whatever he does because all of his work will be discoverable. He says he needs two visits. I will send you a stipulation. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, May 02, 2008 5:48 PM To: [email protected] Subject: RE: Psychiatric evaluation of Dr. Jadwin

Mark,    Under Rule 35, we’re entitled to know the what condition is being examined, the scope of the oral interviews, who will  be present, whether we’ll be receiving a copy of the raw data and a report of the exam setting out in detail its findings,  including diagnoses, conclusions, as soon as they are available, etc. Also, is there any reason that the examination  cannot occur in a single visit?    If you have a stipulation in mind, I’d like to take a look at it.    In the meantime, I’ll speak with Dr. Jadwin re available dates.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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Califocnia Laboc & Emplo,ment Law 0109 111 Be Taking A Brief Break from Posting April 11,

'00'

n ..." 1

'Y " ' " , , " ..

OPP000036

   

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 47 of 80

From: Mark Wasser [mailto:[email protected]] Sent: Friday, May 02, 2008 4:28 PM To: Eugene Lee Cc: Karen Barnes Subject: Psychiatric evaluation of Dr. Jadwin Gene, We want to have Dr. Jadwin examined by Dr. Robert Burchuk, a psychiatrist in Woodland Hills. The evaluation will consist of two, 4-hour sessions on two different days. The sessions will be oral interviews and will not involve any testing. If any tests are to be administered to Dr. Jadwin, they will be done separately and only after separate arrangements are made with you. Burchuk is at 6320 Canoga Avenue, Suite 1500, Woodland Hills. Could you please give me some dates when Dr. Jadwin is available? Thank you. Mark

Law Offices of Mark A. Wasser 400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405 E-mail: [email protected]

2

OPP000037

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Document 125-3

Filed 05/09/2008

Page 48 of 80

EXHIBIT 9. Emails between Plaintiff and Defendants, dated 5/4/08 to 5/5/08

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 49 of 80

Eugene D. Lee Mark Wasser [[email protected]] Monday, May 05, 2008 10:48 AM [email protected] RE: Continuance of expert deadlines/DME

From: Sent: To: Subject: Fine, Gene. Whatever.

From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, May 05, 2008 10:42 AM To: [email protected] Subject: RE: Continuance of expert deadlines/DME

Mark,    I did NOT say I agreed to forego filing the supplemental complaint. I said I would think about it. Please do not suggest I  have committed to things I have not. Second, it is not an amended but supplemented complaint, supplemented to  reflect the fact of KMC’s non‐renewal of Dr. Jadwin’s contract on October 4, 2007. When I spoke to you, the  supplemental complaint was already done and I told you so. All I’m requesting is your stipulation. If you don’t want to  give it, that’s fine…and I hasten to add typical of your conduct in this action. We’ll file a motion. The motion is utterly  unnecessary and I see no reasonable basis for your refusal to stipulate, but that is your choice. The consequence will be  unnecessarily increased statutory attorney fees and costs.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

          From: Mark Wasser [mailto:[email protected]] Sent: Monday, May 05, 2008 8:30 AM To: [email protected] Subject: RE: Continuance of expert deadlines/DME 1

OPP000038

Gene,

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 50 of 80

Our motion will be submitted to whomever the Clerk directs it to. We simply file it. Neither you nor I control that. Regarding the complaint, this is another example why we do not work together. We discussed that at our meet and confer session before the Perez depo. I told you I did not think it was a necessary amendment and you said you agreed. Pleadings do not need to be amended endlessly. I assumed the issue was resolved. Now, out of the blue, here it is again. Sorry. No thanks. If you want to file another supplemental complaint, bring a motion. For all I know you will be amending the complaint up to trial. The pleadings are done. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Sunday, May 04, 2008 5:29 PM To: [email protected] Subject: RE: Continuance of expert deadlines/DME

Mark,    We’ll be pleased to stip to shortened time (giving Plaintiff 1 week for opposition and waiving Defendants’ reply)  provided 1) you are submitting the motion to Judge Wanger, whose scheduling order you are seeking relief from, and 2)  you sign the stipulation for leave for plaintiff to file the Third Supplemental Complaint, which I sent you on April 17 (see  attached) and regarding which I have not heard from you since.    I look forward to hearing from you.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

          From: Mark Wasser [mailto:[email protected]] Sent: Sunday, May 04, 2008 12:07 PM To: [email protected] Subject: RE: Continuance of expert deadlines/DME 2

OPP000039

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

Page 51 of 80

Gene, We are filing a motion for partial relief from the scheduling order as I explained. We are also going to request that the motion be heard on shortened time. Will you stipulate to shortened time? I will waive my reply. I have in mind a week for opposition and then it will be deemed ready for hearing. Let me know so I can put in my declaration that we met and conferred. Thanks. Mark

OPP000040

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

EXHIBIT 10. Plaintiff’s Expert Disclosure, dated 5/5/08

Page 52 of 80

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 125-3 120

4

Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

5

Attorneys for Plaintiff DAVID F. JADWIN, D.O.

1 2 3

Filed Filed 05/09/2008 05/05/2008

Page Page 53 1 ofof480

6 7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

DAVID F. JADWIN, D.O., Plaintiff,

10 v.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S DESIGNATION OF EXPERT WITNESSES

11 COUNTY OF KERN, et al.,

[F.R.C.P. Rule 26]

12 Defendants. 13

Date Action Filed: January 6, 2007 Date Set for Trial: December 3, 2008

14 TO THE CLERK OF THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF 15 RECORD: 16 Plaintiff hereby gives notice that plaintiff has fully complied with Rule 26 in all respects by this 17 day serving the following on defendants with respect to its expert witnesses – Dr. Anthony E. Reading, 18 Ms.Stephanie Rizzardi, Ms. Regina Levison and Dr Lawrence Weiss: (i) Opinion reports; (ii) Sources of 19 information; (iii) Exhibits; (iv) CVs, including lists of all publications authored in the previous 10 years; 20 (v) Lists of all cases in which, during the previous 4 years, the witness testified; and (vi) Fee schedules. 21 A copy of the certificate of service and mail receipt are attached hereto as Exhibit A. 22 Respectfully submitted, 23 Executed on: May 5, 2008

LAW OFFICE OF EUGENE LEE

24 /s/ Eugene D. Lee 25 26

EUGENE D. LEE Attorney for Plaintiff, David F. Jadwin

27 28

DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 1 OPP000041

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Filed Filed 05/09/2008 05/05/2008

Page Page 54 2 ofof480

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

EXHIBIT A DECLARATION OF EUGENE D. LEE IN SUPPORT OF DECLARATION re: INABILITY TO SECURE COOPERATION TO PREPARE AND EXECUTE JOINT STATEMENT re: MOTION FOR PROTECTIVE ORDER 2 OPP000042

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 125-3 120

1 2 3 4

Filed Filed 05/09/2008 05/05/2008

Page Page 55 3 ofof480

CERTIFICATE OF SERVICE I, the undersigned, hereby declare: I am a resident of Los Angeles in the State of California. I am over the age of 18 and not a party to the action described herein. I am employed in the County of Los Angeles, California. My business address is LAW OFFICE OF EUGENE LEE, 555 West Fifth Street, Suite 3100, Los Angeles, CA 90013. On the date of execution of this DOCUMENT, I served the following:

5 6 7

PLAINTIFF’S RULE 26 EXPERT DESIGNATIONS, INCLUDING OPINION REPORTS, CV’S, FEE SCHEDULES, LISTS OF PUBLICATIONS, ETC., FOR DR. ANTHONY E. READING, MS.STEPHANIE RIZZARDI, MS. REGINA LEVISON AND DR LAWRENCE WEISS

8 on the following parties in this action by and through their attorneys addressed as follows: 9 10 11 12 13

Mark A. Wasser LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Fax: (916) 444-6405 Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy

14 15 16

BY UNITED STATES MAIL: I enclosed the DOCUMENT(s) listed above in a sealed envelope with postage thereon fully prepaid, addressed to the PERSON(s) listed above, and deposited the sealed envelope with the United States Postal Service at Los Angeles, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

17 18

FEDERAL: I declare under penalty of perjury under the laws of the United States of America that the above is true and correct and that I took said actions at the direction of a licensed attorney authorized to practice before this Federal Court.

19 Executed on May 5, 2008, at Los Angeles, California. 20 21 22 Eugene D. Lee

23 24 25 26 27 28 CERTIFICATE OF SERVICE

OPP000043

IT'

U.S. Postal Servicem CERTIFIED MAILu" RECEIPT

(Domestic Mail Only; No Insurance Provided) Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 125-3 120Coverage Filed Filed 05/09/2008 05/05/2008 U1

Page Page 56 4 ofof480

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OPP000044

Case 1:07-cv-00026-OWW-TAG

Document 125-3

Filed 05/09/2008

EXHIBIT 11. Defendants’ Expert Disclosure, dated 5/7/08

Page 57 of 80

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document125-3 116

1 2 3

Filed Filed 05/05/2008 05/09/2008

Page Page 158ofof2380

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: 6) 444-6400 444-6405

4

UNITED STATES DISTRICT

20 21 22 23 24

Defendants may use the following persons to present evidence at trial under Rules 702, 703 or 705 ofthe Federal Rules of Evidence: Robert Burchuk, M.D., 6320 Canoga Ave., Suite 1500, Woodland Hills,

25

1.

26

California 91367.

27 28 -1-

DEFENDANTS' LIST OF EXPERT WITNESSES

OPP000045

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document125-3 116

1

Filed Filed 05/05/2008 05/09/2008

Page Page 259ofof2380

Dr. Burchuk will conduct a mental and psychiatric examination of Plaintiff and will

2

provide opinion testimony on Plaintiff s mental and psychiatric condition and prognosis and the

3

extent to which Plaintiffs condition and prognosis are related to his employment at KMC. Burchuk's rate

a",,",a""

IS

att,lcrled as

i_"',"UHJ'H

tes1tIml:.my is $350 Hurctmk cannot cOlnpllete

1

Rick A. Sarkasian

Valley Rehabilitation Services,

545 East

4 15 6

SaJrkaslan will ex,unme Pla-intifftrom a vocational

pel~sp'ectlve

assess Pla.intitr

21

Respectfully submitted,

22

Dated: May 5, 2008

LAW OFFICES OF MARK A. WASSER

23 24 25

By:

lsi Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et a1.

26

27 28 -2-

DEFENDANTS' LIST OF EXPERT WITNESSES

OPP000046

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document125-3 116

Filed Filed 05/05/2008 05/09/2008

Page Page 360ofof2380

EXHIBIT A

OPP000047

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document125-3 116

Filed Filed 05/05/2008 05/09/2008

Page Page 461ofof2380

CURRICULUM VITAE

ROBERT BURCHUK, M.D.

Ave. Woodland Hills, California 91367 'V

Pri"~t'"

",avE,"

Practice

Forensic

1J"'J('hl~tt·V

Washington University Medical Center, July 1985-June 1986. PGY-V Fellow, UCLA/San Fernando Valley Forensic Psychiatry Fellowship, Los Angeles, CA, July 2006- June 2007 Licensure and Certification:

State of California, Board of Medical Quality Assurance License Number G62596, April 1988 Diplomate, National Board of Medical Examiners Certificate Number 256443, July 1983 Diplomate, American Board of Psychiatry and Neurology Certificate Number 29390, November 1987

OPP000048

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document125-3 116

Filed Filed 05/05/2008 05/09/2008

Page Page 562ofof2380

Managed Carel

Health Plan Experience:

August 200l-February 2006: Vice President and Corporate Medical DiJrecltor, PacifiCare Hpll::lVl0r::l1 corpOl'ate wide NlemCal Management and Quality Improvement. nUf,U.H 2002 February 2003: WI~"tl'rn Kegw,n Nledlcal Director 2002: Western Region Medical DiI'ector, PacifiCare Behavioral

AA"UUJlL

March 1998-May 2001: Medical Director, One Health Plan of California, Inc, Medical Director llct~nst~d in in and Great-

Plan of Califc1rnia, product Los Angeles and Orange County; Medical Director for Behavioral Health, Statewide; interim Medical Director for Medicare HMO product, statewide, FebruarySeptember, 1997 including preparation for successful HCFA audit.

November 1991-November 1996: Regional Consulting Psychiatrist, Prudential HealthCare Plan of California, Inc, Utilization review, quality improvement, provider network development, benefits design and marketing input. March-November 1991: Physician Advisor, American PsychManagement of California, Inc, (now Value/Options). Utilization review and first level appeals of inpatient and outpatient psychiatric treatment.

2

OPP000049

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NCQA

Snl'ViPl10r~

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1996-2005

Northridge, California. Adult and adolescent psychiatry, including mp'atlt:nt, outpatient and '-'VA1"U'UHIVH and at No'rthl:id~~e HCISpttal Medical '-''-'ue..... Ifl1:i1JflinJ

1991-December 1991:

subcontractor services to Medical Psychiatrists including: inpatient services at Charter Hospital of Long Beach and the Geropsychiatric Institute at Los Alamitos Medical Center; consultation to patients at St. Mary's Medical Center and Pioneer Hospital; outpatient treatment.

Full-Time Faculty Experience:

July 1986-June 1988:

Assistant Professor, Department of Psychiatry and Behavioral Sciences, George Washington University Medical Center. Medical Director, Psychiatric Day Treatment Program, George Washington University Medical Center. Presentations:

"Treatment Planning in Managed Care" at Biological Aspects of Mental Disorders, A Practical Guide for Psychotherapists, Southern California Psychiatric Society, May 1993.

3

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"Health Plan - Provider Relations: A Critical Factor in Quality Care" at Managed Mental Healthcare Global Business Research, New Orleans, December 1994. "Use DSM IV with Maina/sect Seminars, The DSM IV: Nmlemlber 1994.

at Advancement and Overview,

Treatment Behavioral Panel Healthcare Tomorrow, San Francisco, September 1996.

and Care: Medical Behavioral Health Care Delivery. " Co-presenter at California Association for Healthcare Quality, 2005 Spring Conference

232. Professional Organization Memberships:

American Psychiatric Association, Distinguished Fellow Southern California Psychiatric Society, President-elect, 2008-2009, Councilor, 1995-8, Member Managed Care and Fund Raising Committees, 1995-6; Public Affairs Committee; Co-Chair 1996-7; Chair 1997-8 and 2004-5; Chair Managed Care Committee 2003present; candidate for President elect, 2008 (unopposed) American Academy of Psychiatry and the Law

4

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EXHIBITB

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Vita JULIE B. OLSON-BUCHANAN

Oct., 1992

Ph.D, Industrial/Organizational Psychology Illinois at Urbana-Champaign Split Minor: Social and Quantitative Psychology. Dissertation Title: Voicing Discontent: What 1-I!:I,nnt:,nc

University of Illinois at Urbana-Champaign Honors Thesis Title: Performance Appraisal: A Cognitive

Management, California State University, Fresno

Grievance

LJnt~rn'''l'h

Business

Undergraduate Courses Taught: The Staffing of Organizations (HRM 153) Compensation Administration (HRM 153) Seminar in Human Resource Management (HRM 159) Junior Honors Seminar (CSB 184) Senior Honors Seminar I (CSB 185) and II (CSB 186) Administration and Organizational Behavior (MGT 110

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Graduate Courses: Managing Human Capital (MBA 240) International Strategic Human Resource Management (MBA 289T) Uoint venture with Burgundy School of Business, France) Faculty I-ellow. 2000-2006

California State University, Fresno

Compensation Administration (HRM 153) Resource Management Seminar in Behavioral Management 1

-1

159)

uitrne!rlt & Selection Research

PUBLICA TIONS

Olson-Buchanan, J. B. & Boswell, W. R. (2008). Mistreatment in the workplace: Prevention and Resolution. Oxford: Blackwell-Wiley Publishing. Olson-Buchanan, J. B. & Boswell, W. R. (2008). An integrative model of experiencing and responding to mistreatment at work. Academy of Management Review. 33 (1), Boswell, W. R. & Olson-Buchanan, J. B. (2007) Correlates and consequences of being tied to an "electronic leash." Journal of Management, 33, 592-610. Van Dyk, A., Chaffe-Stengle, P, Sanchez, R. J., & Olson-Buchanan, J. B. (2007). The role of language fluency in organizational commitment and perceived organizational support. Journal of Foodservice Business Research.

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Olson-Buchanan, J. B. (2007). Employee Grievance Systems. In S. Rogelberg's (Ed) Encyclopedia of Industrial and Organizational Psychology. SAGE Publications. Olson-Buchanan, J.B., & Boswell, W.R. (2007). Dispute resolution system design. In C.K.W. De Dreu, & M.J. Gelfand's (Eds.), The Psychology of Conflict and Conflict Management in Organizations. SlOP Series, Erlbaum PUblishing. J., & Schmidtke, J.

a Olson-Buchanan, J. B. & Boswell, W. R. (2006). Blurring boundaries: Correlates of

Demographic Factors. Journal of Business Ethics, 60 (4), 341-358. ,& J. at The role of grievance-filing, nature of mistreatment, and employee withdrawal. Academy of (1), 129-1

Olson-Buchanan, J. B. (2001) Computer-based assessment: Advances and challenges. In F. Drasgow and N. Schmitt (Eds.) Advances in Measurement and Data Analysis. SlOP Frontiers Series. Jossey-Bass. Richman, W. L., Olson-Buchanan, J. B., & Drasgow, F. (2000). Examining the Impact of Administration Medium on Examinee Perceptions and Attitudes. Journal of Applied Psychology, 85 (6), 880-887. Drasgow, F. & Olson-Buchanan, J. B. (1999). Innovations in Computerized Assessment. Edited book. Lawrence Erlbaum Publishers. Olson-Buchanan, J. B. & Drasgow, F. (1999). Beyond bells and whistles: An introduction to computerized assessment. In F. Drasgow and J. B. Olson-Buchanan (Eds.) Innovations in Computerized Assessment, pp 1-6. Drasgow, F., & Olson-Buchanan, J. B. (1999).

Blood, sweat, and tears:

Some final

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comments on computerized assessment. In F. Drasgow and J. B. Olson-Buchanan (Eds.) Innovation in Computerized Assessment, pp 249-254. Drasgow, ,Olson-Buchanan, J. B., & Moberg, P. J. (1999) Development of interactive video assessments. In Drasgow and J. B. Olson-Buchanan (Eds.) Innovations in Computerized J., Mead, ,& Assessment, pp 177-196. Olson-Buchanan, J. ,Drasgow, ,Moberg, Keenan, P. A., (1998). The Conflict Resolution Skills Assessment: Model-Based, Multi-Media Measurement. Personnel Psychology, §1, 1-24.

Human Resources Management, JAI Press.

J.

,&

L. (1992). performance appraisal. Journal of Vocational Behavior, 40, 49-61.

errors

Organizational Psychology, San Francisco, Ca. Olson-Buchanan, J. B. (2007, April). Panelist in SlOP Organizational Frontiers Volume: nd Conflict in Organizations. Symposium presented at the 22 annual meeting of the Society for Industrial and Organizational Psychology, New York, NY. Olson-Buchanan, J. B. (2007, April). Panelist in Why Use SJTs for Training and nd Development? Roundtable at the 22 annual meeting of the Society for Industrial and Organizational Psychology, New York, NY Olson-Buchanan, J. B. & Boswell, W. R. (2006, July). Experiencing and Voicing Mistreatment at Work: Opportunities for Positive Consequences. In C.K.W. de Dreu & Lourdes Mundate's The Dangers and 0rportunities of Organizational Conflict within and Across t Culture. Invited paper at the 26 International Congress of Applied Psychology. Athens, Greece. Olson-Buchanan, J. B. (2006, May). Panelist in SlOP Organizational Frontiers Series: Situational Judgment Tests -Theory, Measurement, and Applications. Symposium presented at st the 21 annual meeting of the Society for Industrial and Organizational Psychology, Dallas,TX. Schmidtke, J. M., Rechner, P. L., Olson-Buchanan, J. B. & Sanchez, R. J. (2006, May).

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The Effects of Feedback and Leadership on Virtual Performance. Paper presented at the 21 st annual meeting of the Society for Industrial and Organizational Psychology, Dallas,TX. Sanchez, R J., Olson-Buchanan, J. B., Rechner, P. L., & Schmidtke, J. M. (2006, May). Multiple-Perspective Taking in Team-Member Exchange in a Virtual Environment. Paper st presented at the 21 annual meeting of the Society for Industrial and Organizational Psychology, Dallas, TX. Lopez, Y. ,Rechner, L., Sundaramurthy, C., & Olson-Buchanan, J. B. (2005, August). Enhancing Ethical Perceptions: Impact of Integrated Ethics Curriculum vs a Stand Alone Ethics Course.

th

Presented at the 19 Annual Conference of the Society for Industrial and Organizational Psychology. Sanchez, J., J. L., J. The Effects of Dispositional Trust and Team-member Exchange in the Virtual Environment. Paper presented at the annual meeting of the Academy of Management, Seattle, WA. S("'!,mirlt~~t:> J. J. , & Sanchez, Process I\JI<:lttt:>lrc I\Il..,n.."no'"Y"Iont Seattle,

the Influence Business Education, Awareness: An Empirical Assessment Demographic Factors. Paper presented at Academy of Management, Denver, CO. Olson-Buchanan, J. B. & Boswell, W. R (August, 2001). Voicing Discontent: The Role of Employee Loyalty and informality. Academy of Management Conference, Washington, D.C. Boswell, W. R & Olson-Buchanan (2001). International Association for Conflict Management Conference, Paris, France. Boswell, W. R, Olson-Buchanan, J. B., Cavanaugh, M. (2000). (August, 2000) Investigation of the Relationship Between Work-Related Stress and Work Outcomes: The Role of Felt-Challenge, Psychological Strain, and Job Control. Paper presented at the Academy of Management Conference, Toronto, Canada. Richman, W. L., Olson-Buchanan, J. B., Drasgow, F., & McEvoy, J. (April, 1998). Does Medium of Administration Matter? In F. Drasgow's (Chair) New Developments in Computerized Assessment for the Workplace. Symposium conducted at the 1998 Society for Industrial and Organizational Psychology Conference, Dallas, Texas. O'Connor, K. M. & Olson-Buchanan, J. B. (June, 1997). Intragroup Conflict and Task Performance: The Mediating Role of Conflict Management Strategy. Paper presented at the

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1997 Annual Conference for the International Association for Conflict Management, Bonn, Germany. Olson-Buchanan, J. B. (June, 1996). To grieve or not to grieve? Factors related to voicing discontent in an organizational simulation. Paper presented at the 1996 Annual Conference for the International Association for Conflict Management, Cornell University, NY. Olson-Buchanan, J. B., Drasgow, F., Moberg, P. M., & Donovan, M. (April. 1996). interactive Video Assessment of Conflict Resolutions Skills. Paper presented at the 1996 Society Industrial and Organizational Psychology Conference, San Diego, CA , & 1 !!::lli2~.Q!J!:illm~~.I1!§!j~m

Olson, J. (1993). Grievance System Research in Field Studies: To err is human, but is to grieve divine? Symposium conducted at the 1993 conference of the International Association Conflict Management, Brussels, Belgium. Olson, J. B. (1993). Laboratory Research on Grievance Systems: Is it worth the sacrifice? Symposium conducted at the 1993 conference of the International Association for Management, Brussels, Belgium. J. (1993). =.:.:;==-=.:J.:.=.:..=....;:.:..:....:::.:...=L::::==..:.=.:...-=-:.:...:....=.;===.:...:..~:.:..:.::..=.:.::::..:..:.:::.:. post-appeal consequences

Management, Minneapolis, J. (1992, May). Dyer, P.J., Desmarais, L.B., Midkiff, K.R., Colihan, J.P. & Olson, Designing a multimedia test: Understanding the organizational charge, building the team and making the basic research commitments. In P.J. Dyer's (Chair) Computer-based multimedia testing: Merging technology, reality and scientific uncertainty. Symposium conducted at the 1992 Society for Industrial and Organizational Psychology Conference, Montreal, Quebec. Olson, J. B. & Keenan, P. A, (1991, June). Assessing administrative decision making skills. In F. Drasgow (Chair), Compas: A computerized assessment system. Symposium conducted at the meeting of the International Personnel Management Association Assessment Council, Chicago. Keenan, P. A, & Olson, J. B. (1991, June) Assessment of conflict management skills. In F. Drasgow (Chair), Compas: A computerized assessment system. Symposium conducted at the meeting of the International Personnel Management Association Assessment Council, Chicago. Olson, J. B. & Hulin, C. L., & Hubert, L. J. (1991). Performance appraisal: An information processing approach to rating errors. Paper presented at the 1991 Society for Industrial and Organizational Psychology Conference, St. Louis, Missouri. Olson, J. B. & Keenan, P. A (1991, April). A computerized in-basket test of administrative

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decision making. In F. Drasgow (Chair), Multi-Media computerized assessment of individuals. Symposium conducted at the 1991 Society for Industrial and Organizational Psychology Conference, St. Louis, Missouri. Keenan, P. A., & Olson, J. B. (1991, April). A model-based multi-media technique for Multi-Media computerized assessing conflict management skills. In F. Drasgow (Chair), Industrial assessment of individuals. Symposium conducted at the 1991 Society Organizational Psychology Conference, St. Louis, Missouri.

Best Papers Proceedings, Academy of Management, 2001 Laval Award for Faculty Research Craig School of Business, California State

1998

Best Paper Award, 1992 Award for the best paper in the Organizational Conflict track at the 1992 International Association of Conflict Management Conference. Janet Tritsch Memorial Award recipient, 1987 Award for the most outstanding research paper in Psychology submitted by an undergraduate, University of Illinois.

OTHER PROFESSIONAL CONTRIBUTIONS Editorial Board, Journal of Management, 2008-2010 Conference Chair, 2008-2010 Society for Industrial and Organizational Psychology, 2007-2008 Committee Member, Strategic Program Planning Subcommittee Society for Industrial and Organizational Psychology, 2002- Present

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Committee Member, Future Conference Programming Task Force Society for Industrial and Organizational Psychology, 2006-2007 Committee Member, Strategic Planning, Membership Cluster Society for Industrial and Organizational Psychology, 2006 Past Program Chair Society for fndllstnAf Program Chair Society for IndllstnAf

Society for Industrial and Organizational Psychology, Spring 2006

(1997-2000) Society for Industrial and Organizational Psychology Awards Committee (1993 to 1995) Academy of Management (Conflict Division), Conference Reviewer (1996-1998)

OTHER ACADEMIC HONORS

Bronze Tablet (Top 2 % of graduating class, University of Illinois) Phi Beta Kappa (National Honor Society) Golden Key Honor Society (National Honor Society) Psi Chi (Psychology Honor Society) Alpha Lambda Delta (Freshman Honorary) Phi Kappa Phi (Faculty induction) Beta Gamma Sigma (Business Honor Society, Honorary membership) UNIVERSITY AND COMMUNITY SERVICE

Department Committeesl Service Human Resource Collegiate Competition, Coach (1992 - 2006) Coached to two 1sl place National Championships (2001; 2005)

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Chair, Mentor Committee, Dr. Rudy Sanchez (2001-2005) Assessment Coordinator, HRM, 2001-2003 Undergraduate HRM Coordinator, 2001-present Reighard Selection Committee (2000 - Present) Chair, Lecturer Search & Review Committee (1998 - 2003) Society Resource Management, (1992 Won top chapter merit award, 1998-2001 'nrY'n"\ittQQ (1999 - 2000)

Chair, Craig School of Business & Psychology Department Task Force (1998 - 2000) Task Force, 2000 & Beyond (1999 - 2000) Student Affairs Committee (1993- Spring, 1997, 1998-2000) CSB Honors Program Taskforce (Fall, 1996 - Spring, 1998) CSB Reaccreditation Taskforce (Spring, 1995 to 1998) 1996

Group Interviews, 1997 Graduate School Information Night, 1994, 1995, & 1996 BAC Mentor Program Participant Graduate Equity Fellowship / MAGIC Program Mentor SOBAS Research Colloquium (1992 - 1993)

University Service Personnel Committee, Fall, 2006 - Present RFP Review Committee, Fall 2007 (for new teaching evaluation system) Co-Chair, University Strategic Plan Taskforce, Employees & Workplace Development University Honors Council (1998 - 2005) Employee Assistance & Development Council (1996 - 2001) Employee Assistance & Development Executive Council (1998 - 2001) Professional Development Committee (1992 - 1997) Blue Ribbon Committee on the Teacher-Scholar Model, (Spring, 1995 to Fall, 1995) Provost's Committee on Teaching Excellence (1994-1995)

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Mentoring Task Force (Professional Development Subcommittee, Spring, 1994) Extended Education Advisory Committee ("Contemporary Issues and Concerns in Human Resource Management") (1993) University Promotion Campaign Participant (1998 & 2000) Community Service Community Food Bank (Second Harvest) Formed partnership with local food bank to provide am'iM)es & rell'ISF,!G

Co-leader, Golden Valley Girl Scout Council (August, 2004 - Present) Troop 551

2006)

PA,rfnlrmJ=!nr'A

Appraisal

Regional Jobs Initiative Training Performance Appraisal Fairness in Management Community Medical Centers Fairness in Management MuniServices Fairness in Management Superior Court of California, County of Fresno Fairness in Management

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Expert Witness

Keathley v. Sanofi-Aventis Pharmaceuticals, Case no. 05CECG03747 Depositions & trial testimony regarding workplace retaliation for whistleblowing and voicing mistreatment

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EXHIBITC

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RICKY ALAN SARKISIAN, Alluvial Avenue, Suite FresnoJ 93720-2826 Telephone: (559) 439-8000

Rehabilitation Counselor, Fresno Community Hospital, Rehabilitation Center, Fresno, CA. Provided diagnostic and counseling services to disabled and non-disabled patients (February, 1975 to December, 1975). School CouQselor, California State University, Student Health Services, Fresno, CA. Provided individual and group counseling to university students in medical setting (September, 1973 to January, 1975). Vocational Counselor, State of California, Employment Development Department, Fresno, CA. AssIsted vocational clients with occupational choice change, or adjustment. Some supervisory responsibilities, placement interviewing and job development. (september, 1969 to September, 1972).

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Monterey Sacramento

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Ventura

06/01/06

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VALLEY REHABILITATION SERVICES, INC. 545 Ensl Alluvia! Avenue, Suite 116, Fresno, CA 93120-2826 4.j'~-U'''! 8

Travel Time

$ ZOO/hr,

$ 350/hr.

than a notice depositions, trial£ imd mo.tters, a caru~ejl1ation be applied based on the time reserved. Preparation, travel time and any expenses incurred for depositions will be billed to the retaining attorney per C.C.P. Section 2034(1). Half-day ($1,800) or full.day ($3,600) charges may be billed to the retaining attorney depending 011 the deposition location.

Payment for all services will be the sole responsibility of the retaining attorney or law ftrm. All invoices al'e due and payable on receipt. Payment of any unpaid balance is due prior to deposition and trial appeanlnecs, including expected fees for preparation and travel.

Make checks payable to "Vaney Rehabilitation Services, Inc:' 03122107

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