26 Joint Scheduling Report

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

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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.

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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

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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.,

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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]

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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)

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

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Honorable Oliver W. Wanger.

3 I.

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SUMMARY OF CONTENTIONS & RELIEF SOUGHT

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

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

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

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

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

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

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

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

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

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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

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of the Health & Safety Code 1 which prohibits retaliation against a health care provider who reports

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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resulting from Defendants’ unlawful conduct.

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

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

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position of Chair of the Pathology Department.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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departmental administrative responsibilities.

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

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

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

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environment to stabilize.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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

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

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parties leave to file their respective amended/supplemented pleadings.

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

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

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

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not been able to reach a resolution.

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III. SUMMARY OF UNCONTESTED AND CONTESTED FACTS. 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

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

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

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

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workplace.

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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

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

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Conference Committee (“JCC”).

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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.

28 JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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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.

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

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Filed 05/21/2007

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

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Document 26-1

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.

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

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

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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.

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

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

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others to discuss those subjects.

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

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

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

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Plaintiff’s base compensation.

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

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

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

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those writings speak for themselves. 25. Defendant Kern County placed Plaintiff on paid administrative leave, which continues to this

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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

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

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

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conduct and with his interference with patient care.

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

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IV. SUMMARY OF UNDISPUTED AND DISPUTED LEGAL ISSUES

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A. Undisputed issues 1. None

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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.

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

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

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

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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

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

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injunction requiring compliance.

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

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

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

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violations.

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

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

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compliance.

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V.

STATUS OF ALL MATTERS BEFORE THE COURT

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

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

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

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

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

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

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

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

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

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before the Pretrial Conference.

16 VI. DISCOVERY PLAN

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At the Rule 26(f) conference, the parties tentatively agreed on the below dates. A. Rule 26(a)(1) Initial Disclosure Deadline [August 6, 2007].

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B. Discovery Subjects, Deadlines, Limitations, Phasing, Etc. 1. Expert Deadlines

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Expert Disclosure Deadline:

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Supplemental Expert Disclosure Deadline: [February 18, 2008]

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[February 4, 2008]

2. Discovery Deadlines

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Non-Expert:

[February 4, 2008]

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Expert:

[April 15, 2008]

Page 10 of 14

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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reasons why Plaintiff claims he is disabled.

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

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

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

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

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

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

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

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

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

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

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

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

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

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other electronic discovery issues.

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

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

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

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

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

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

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

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

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

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

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

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

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

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The parties hereby agree that, in order to preserve the confidentiality required for continued

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effective treatment of Plaintiff’s depression, anxiety, insomnia, and emotional distress, Plaintiff’s

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

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

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

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

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

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

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

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

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E. Changes in Limitations on Discovery

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

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

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

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

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

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

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

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

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limitations on discovery.

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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.

23 VII. AGREED-UPON DATES

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At the Rule 26(f) conference, the parties tentatively agreed on the below dates. A. Pre-Trial Motions 1. Non-Dispositive Motions

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Filing Deadline:

[May 5, 2008]

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Heard no later than:

[June 4, 2008]

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2. Dispositive Motions

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Filing Deadline:

[June 2, 2008]

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Heard no later than:

[August 6, 2008]

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B. Pre-Trial Conference

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1. Settlement Conference:

[April 15, 2008]

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2. Pre-Trial Conference:

[October 3, 2008]

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C. Trial Trial Date:

[November 3, 2008]

13 VIII. SETTLEMENT

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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.

17 IX. TRIAL BY JURY

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Plaintiff has requested a jury trial on all possible issues and claims.

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X.

ESTIMATE OF NUMBER OF TRIAL DAYS REQUIRED

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

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

26 XII. RELATED MATTERS 27 The parties are unaware of any related matters pending in this Court or any other court, including 28 JOINT SCHEDULING REPORT PURSUANT TO FRCP 26(f)

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any bankruptcy court.

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RESPECTFULLY SUBMITTED on May 21, 2007.

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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 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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/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

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