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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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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DAVID F. JADWIN, D.O.,

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Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(e)]

COUNTY OF KERN, et al., Defendants.

Date: January 12, 2009 Time: 10:00 Courtroom: U.S. Dist. Ct., Crtrm. 3 2500 Tulare St., Fresno, CA Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

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Table of Contents EXECUTIVE SUMMARY ................................................................................................................ 1  A.  Credential Threat .......................................................................................................................... 1  B.  Forced Full-Time Leave ............................................................................................................... 1  C.  Demotion and Paycut ................................................................................................................... 2  D.  Administrative Leave ................................................................................................................... 2  E.  Nonrenewal .................................................................................................................................. 3  II.  ARGUMENT ...................................................................................................................................... 4  A.  THRESHOLD ISSUES ................................................................................................................ 4  1.  Defendants’ Spoliation of Evidence Creates an Adverse Inference Avoiding Summary Judgment ............................................................................................................................................. 4  2.  Defendants Failed to Plead Affirmative Defenses ................................................................... 7  B.  Adverse Employment Actions Common to Counts ..................................................................... 7  C.  COUNTS 1 & 2: Whistleblower Retaliation................................................................................ 8  1.  October Conference .................................................................................................................. 8  2.  PCCs ......................................................................................................................................... 9  3.  Radical Prostatectomy .............................................................................................................. 9  4.  Martinez Tipoff......................................................................................................................... 9  5.  Skull Flaps .............................................................................................................................. 10  6.  Smear Campaign..................................................................................................................... 10  D.  COUNTS 3 & 4: Medical Leave Retaliation ............................................................................. 10  E.  COUNTS 4 & 5: Medical Leave Denial/Interference ................................................................ 13  F.  COUNT 9: Deprivation without Due Process ............................................................................... 14  1.  Demotion ................................................................................................................................ 14  2.  Admin Leave .......................................................................................................................... 15  3.  Nonrenewal ............................................................................................................................. 16  4.  Qualified Immunity ................................................................................................................ 17  5.  Stigma ..................................................................................................................................... 18  G.  COUNTS 3, 10 AND 11: Oppositional/Participatory Retaliation ............................................. 18  H.  COUNT 6: Disability Discrimination ........................................................................................ 20  I.  COUNT 7: Failure to Accommodate ............................................................................................. 23  J.  COUNT 8: Interactive Process ...................................................................................................... 24  III.  CONCLUSION .............................................................................................................................. 25 

I. 

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Table of Authorities Cases  Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908 ............................................. 19 Ayoob v. Ayoob (1946) 74 Cal.App.2d 236, 250-251 ............................................................................... 15 Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) ............................... 11, 12 Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169 ....................... 19 Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2 ...................................................... 19 Blumer v. Madden (1932) 128 Cal.App. 22, 24 ........................................................................................ 15 Board of Regents v. Roth 408 U.S. 564, 578 n.16 (1972) ........................................................................... 8 Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) ........................................ 23 Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998) ........................................................... 17 Brown v. Sierra Nevada Memorial Hospital 849 F.2d 1186 (9th Cir. 1988) ........................................... 22 Byrnie v. Town of Cromwell, Board of Ed. (2nd Cir. 2001) 243 F3d 93, 107 ............................................ 4 California Fair Employment and Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1004 (2004) ............................................................................................................................................. 1 City of Moorpark v. Superior Court, 18 Cal.th 4th 1143 (1998) ................................................................. 21 Colarossi v. Coty USA, Inc. 97 Cal. App. 4 1142 ................................................................................... 10 Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 ..................................................................... 23 Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33 .................................................................. 3 EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424 ...................................................................... 3 EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 .............................................................. 22 Humphrey v. Memorial Hosps. Assn. (9 Cir. 2001) 239 F. 3d 1128, 1139-1140 ..................................... 21 Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989) ................................................................. 1 Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430 ..................................................................... 16 Lujan v. Minagar 124 Cal.App.4th 1040, 1045-46 (2005) ......................................................................... 9 McDonnell Douglas v. Green, 411 U.S. 792 (1973) ................................................................................ 22 Mendiondo v. Centinela Hosp. Medical Center 521 F.3d 1097, 1105 (9th Cir. 2008) .............................. 8 Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998) ...................................... 13 Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006) .............................. 4 O’Mary v. Mitsubishi Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) ..................... 22 Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 .................................................................. 22 Perry v Sindermann 408 U.S. 593, 602 (1972)..................................................................................... 8, 17 Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803 .................................................................................... 10 Roberts v. College of Desert 870 F.2d 1411, 1416 (9th Cir. 1988) .................................................... 14, 17 Roth v. Veteran’s Admin. of United States 856 F.2d 1401, 1409 ....................................................... 16, 17 Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 990–991................................................................. 7 Shoemaker v County of Los Angeles (1995 2d. Dist.) 37 Cal.App.4th 618, 630 ...................................... 16 Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985) .................................................................... 22 Williams v. Shenango, Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997)................................................... 13 Zubulake v. UBS Warburg LLC (SD NY 2004) 229 FRD 422, 432........................................................... 4 Statutes  29 U.S.C. § 2615(b) .................................................................................................................................. 18 Cal. Gov’t C. § 12945.2 ............................................................................................................................ 13 Cal. Gov’t Code §§ 12926.1(c) ................................................................................................................. 21 Cal. Gov’t. C. § 12940(h) ......................................................................................................................... 18 Cal. Gov’t. C. §§ 12900 to 12996 ............................................................................................................. 18 Cal. Gov't. Code 12926(i)(1)(B) ............................................................................................................... 21 Cal. Health & Safety Code § 1278.5........................................................................................................... 8 Cal. Health & Safety Code § 1278.5(b)(1)(A) ............................................................................................ 8 Cal. Health & Safety Code § 1602.5........................................................................................................... 9 Cal. Health & Safety Code § 1635.1......................................................................................................... 10 Cal. Health & Safety Code 1278.5(d) ......................................................................................................... 8 Cal. Labor Code § 1102.5(e)....................................................................................................................... 8 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Cal. Labor Code § 1102.6 ........................................................................................................................... 8 U.S.C. § 2615(b)(1) .................................................................................................................................. 18 Other Authorities  Adv. Comm. Note to 2006 Amendment to FRCP 26(b)(2) ........................................................................ 4 Judicial Council of California Civil Jury Instructions No. 2600 .............................................................. 13 Regulations  2 Cal. Code of Regs. § 7297.1(2).............................................................................................................. 13 2 Cal. Code of.Regs. § 7297.7 .................................................................................................................. 11 2 Cal.Code.of Regs. § 7287.8(b)..................................................................................................... 7, 11, 18

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I. EXECUTIVE SUMMARY Plaintiff David F. Jadwin (“Plaintiff” or “Jadwin”) is a disabled doctor who was formerly chair

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of the Pathology department at Kern Medical Center (“KMC” or “hospital”), a large 60-doctor acute

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care teaching hospital that is owned and operated by Defendant County of Kern (“Defendant County” or

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“County”). [Plaintiff Material Fact (“PMF”) 5, 30]. Plaintiff’s major depression disability was known to

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his employer as early as 2003. [Separate Statement in Support of Defendants’ Motion for Summary

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Judgment (Doc. 259), Defense Material Fact (“DMF”) 62, 63, 64].1

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A. CREDENTIAL THREAT After Plaintiff began blowing the whistle to his employer and, later, outside agencies, regarding

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serious patient care issues and regulatory noncompliance, Plaintiff was subjected to retaliation. In

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October 2005, Defendant County informed Plaintiff of its decision to place letters of reprimand into his

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physician credentialing file (“Credential Threat”). [PMF 40-42, DMF 106]. The unwarranted Credential

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Threat led to a recurrence of his chronic depression disability which necessitated medical leave. [PMF

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75]. Plaintiff notified his employer in January 2006 of his need for medical leave and was thereafter

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granted reduced work schedule medical leave whereby Plaintiff was permitted to work 2 to 3 days per

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week. [PMF 13, 121]. Beginning January 2006, Defendant County did not pay Plaintiff for the days he

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did not work. [PMF 226].

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B. FORCED FULL-TIME LEAVE In April 2006, several months into Plaintiff’s reduced work schedule leave, Defendant Peter

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Bryan, then-Chief Executive Officer of KMC (“Bryan”) observed that “Yes, the Department of

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Pathology continues to function well, as it has for many years, and, yes, you have made many positive

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changes to the department” [PMF 123]. He later testified that “actual functioning of the department of

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It is undisputed that, in 2003, Plaintiff told Marv Kolb, M.D., then-Chief Medical Officer and Plaintiff’s direct supervisor, that he was depressed. There is no legal requirement that Plaintiff notify each and every officer at KMC of his disability, or that he use the word “disability”. In Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989), the court held that notice to Plaintiff’s supervisor was imputed to the person(s) who made the final decisions regarding the adverse action. See also California Fair Employment and Housing Commission v. Gemini Aluminum Corp., 122 Cal.App.4th 1004 (2004) (notice to ANY supervisor of plaintiff’s limitations is sufficient to trigger the accommodation duty.) USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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[pathology] actually was fairly good” [PMF 227] and that no complaints about Plaintiff were “bubbling”

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up to him at the time [DMF160]; nevertheless, Bryan then proceeded to interfere with Plaintiff’s medical

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leave by ordering him onto full-time medical leave in April 2006 (“Forced FT Leave”) so as to burn up

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Plaintiff’s medical leave entitlement. [PMF 228]. This violated the California Family Rights Act

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(“CFRA”) and the Family & Medical Leave Act (“FMLA”).

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C. DEMOTION AND PAYCUT In July 2006, after Plaintiff had been on Forced FT Leave as ordered by Bryan for almost 3

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months, Bryan caused Plaintiff to be demoted by making a recommendation for removal of Plaintiff to

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KMC’s highest decisionmaking body, the Joint Conference Committee (“JCC”) [PMF 16-17], which the

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JCC then approved (“Demotion”). [PMF 18]. The Demotion was accompanied by a more than $100,000

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reduction (“Paycut”) in Plaintiff’s base compensation (“Base Pay”). [PMF 48]. Bryan’s written

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recommendation to the JCC stated that Plaintiff should be demoted based on “Dr. Jadwin’s

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unavailability for service because of extended medical leaves for non-work related ailments” and “solely

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based on his continued non-availability.” (emphasis added). [PMF 17, 122]. Defendant County was

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interfering with and retaliating against Plaintiff’s protected medical leave.

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Moreover, Defendant Bryan and the County failed to give Plaintiff impartial adjudicators, notice

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of the JCC vote, nor any opportunity to face his accusers or defend himself when depriving him of his

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clearly-established contractual right to over $100,000 of Base Pay. [PMF 182-187]. Defendant Bryan

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willfully and maliciously violated Plaintiff’s due process rights. [PMF 123, 162, 15-16].

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D. ADMINISTRATIVE LEAVE

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Prior to the Demotion in July 2006, Bryan had ordered Plaintiff onto 90-day personal necessity

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leave. Defendants claim Bryan was simply “granting” Plaintiff’s request, but Plaintiff never made any

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such request. [PMF 264, 265].

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After that personal necessity leave ended, Defendant County permitted Plaintiff to return to work

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in October 2006 as a demoted staff pathologist and placed him beneath a former subordinate whom

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Plaintiff had hired and trained the year before and whom the County had elevated to Acting Chair of

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Pathology. [PMF 21]. Plaintiff was subjected to further retaliation and harassment. [PMF 23, DMF 176-

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190]. When Plaintiff complained in December 2006 about additional patient care issues and the USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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harassment he was being subjected to [PMF 22-23, DMF 190], Defendant Irwin Harris, then-Chief

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Medical Officer of KMC (“Harris”) and the County placed Plaintiff on administrative leave (“Admin

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Leave”) “pending resolution of a personnel matter”. [PMF 24, 58, 229]. In so doing, Defendants Harris

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and County violated County policy by keeping Plaintiff on administrative leave for more than 5 days

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without obtaining written authorization from the County Administrative Office. [PMF 258].2 During the

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Admin Leave, Plaintiff was physically restricted to his home during work hours [PMF 28, 59, 81] and

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given no explanation or indication as to whether or when the Admin Leave would end. [PMF 24, 26,

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60]. Plaintiff remained on Admin Leave for almost a year until his contract ended on October 4, 2007.

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[PMF 64]. Defendant Harris was acting willfully and maliciously. The Admin Leave denied Plaintiff his clearly-established, contractually-provided for right to

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earn professional fees (“Professional Fees”), which had historically amounted to over $100,000 per year.

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[PMF 25]. Plaintiff was given no notice of the charges against him, nor any opportunity to defend

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himself, nor any other due process. [PMF 193-197]. To date, Plaintiff has yet to personally receive an

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explanation from Defendants why he was placed on Admin Leave despite his several requests to

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Defendant County. [PMF 196, 204].

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E. NONRENEWAL Defendant County decided not to renew Plaintiff’s contract (“Nonrenewal”) [PMF 29, 68], which

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expired on October 4, 2007 [PMF 29], in further retaliation for Plaintiff’s medical leaves and

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prosecution of this lawsuit in defense of his legal rights under the Fair Employment & Housing Act

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(“FEHA”) and FMLA. [PMF 68]. As Ray Watson, then-Chair of the Board of Supervisors for the

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County of Kern, testified: “My understanding was that [Plaintiff] had – he had been on medical leave,

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family leave, and had requested even more leave, and that for that reason and the fact that the was suing

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us, that we decided not to renew his contract.” [PMF 68]. As a member of the JCC, Watson had voted to

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demote Plaintiff [PMF 67] and also participated in the JCC’s decision not to renew Plaintiff’s contract.

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[PMF 67, 68].

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An employer’s’ failure to follow its own policies and procedures gives rise to an inference of unlawful motive because it establishes that the ‘work rules apply to everyone but Plaintiff’. Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33; EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Plaintiff had a constitutional property right to continued employment by Defendant County.

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[PMF 69, 70, 200, 201]. Yet, when Defendant County decided to not to renew his contract, they gave

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him no due process. They never put him on notice as to what the charges against him were nor gave him

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any opportunity to defend himself. [PMF 202-204]. This is despite the fact that, in May 2007, Plaintiff

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had written to Defendant County requesting an explanation for its decision not to renew his contract.

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[PMF 204]. To date, Plaintiff has not received any response from Defendant County, let alone an

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explanation or opportunity to respond. [PMF 204].

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II. ARGUMENT

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A. THRESHOLD ISSUES

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1. Defendants’ Spoliation of Evidence Creates an Adverse Inference Avoiding Summary Judgment

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Spoliation of relevant evidence creates an inference adverse to the party responsible for the 12 spoliation. That inference, in combination with “some (not insubstantial) evidence for plaintiff’s cause 13 of action” may allow plaintiff to survive summary judgment. Byrnie v. Town of Cromwell, Board of Ed. 14 (2nd Cir. 2001) 243 F3d 93, 107 (parentheses in original); see, e.g., Morgan v. U.S. Xpress, Inc., 2006 15 U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006). 16 Once a party reasonably anticipates litigation, it must suspend its routine document 17 retention/destruction policy and put in place a “litigation hold” to ensure preservation of relevant 18 documents. Once the “litigation hold” is in place, a party and its counsel must communicate with key 19 employees to make certain all sources of potentially relevant information are identified and placed “on 20 hold,” and that all backup media are identified and stored in a safe place. See Zubulake v. UBS Warburg 21 LLC (SD NY 2004) 229 FRD 422, 432; see also Adv. Comm. Note to 2006 Amendment to FRCP 22 26(b)(2). 23 Plaintiff twice requested Defendant County to preserve evidence. On June 29, 2006, Plaintiff’s 24 counsel sent a letter to Kern County counsel Karen Barnes (“Barnes”) which was captioned “Re: 25 Preservation / no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.”. This letter pre26 dated the Demotion of July 10, 2006 by almost a month. [PMF 230]. It outlined in detail Plaintiff’s 27 pending claims for whistleblower and medical leave retaliation and disability discrimination and 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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formally demanded Defendant County take all appropriate affirmative steps to preserve evidence

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relating to those claims, including “notes taken at meetings with or concerning Dr. Jadwin”. [PMF 231].

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On March 29, 2007, Plaintiff’s counsel again sent a letter to Barnes stating, “I would like to remind you

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that KMC is under a strict legal obligation to preserve and prevent spoliation . . . .”. [PMF 232].

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Nevertheless, at Plaintiff’s 8/19/08 deposition of Barbara Patrick, former Chair of the Kern

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County Board of Supervisors and member of the JCC who voted to demote Plaintiff (“Patrick”) [PMF

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233], Patrick testified that: 1) she had taken notes at every JCC meeting [PMF 234], 2) she had shredded

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all of her documents upon leaving office on January 8, 2007 [PMF 235], 3) she had thrown out

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documents which included JCC meeting agendas on the margins of which she had taken notes [PMF

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236], and 4) Kern County counsel had never contacted her regarding preservation of documents and

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evidence in connection with Plaintiff’s lawsuit. [PMF 237]. It should be noted that Defendants failed to

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produce a single JCC meeting agenda in response to Plaintiff’s numerous discovery demands. [PMF

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238]. Moreover, in the absence of the spoliated agendas, Patrick was able to recall very little about the

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JCC meeting at which the Demotion was approved. [PMF 239].

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Patrick’s spoliated notes were material evidence relating to the circumstances surrounding the

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Demotion and Paycut and therefore relevant to Plaintiff’s allegations that whistleblower retaliation,

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medical leave interference/retaliation and disability discrimination were motivating factors in the

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Demotion, that Defendant County acted willfully in engaging in FMLA interference with respect to the

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Demotion, that Defendant Bryan acted with malice in causing violation of Plaintiff’s constitutional due

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process rights with respect to the Demotion, and that Defendants’ alternative explanations therefor are

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pretext, among other things.

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Likewise, at Plaintiff’s 8/21/08 deposition of David Culberson, former CEO of KMC who

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decided to place Plaintiff on Admin Leave (“Culberson”) [PMF 240], Culberson testified that: 1) he had

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taken notes at each of up to 10 meetings of the KMC “leadership team” regarding Plaintiff and the

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Pathology department [PMF 241], 2) Culberson destroyed those notes prior to January 2007, by

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shredding them, ripping them up, crumpling them up and throwing them in the trash [PMF 242], and 3)

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no one ever contacted him regarding preservation of documents and evidence in connection with

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Plaintiff’s lawsuit. [PMF 243]. In the absence of those notes, Culberson was unable to recall important USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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details, such as the allegations against Plaintiff that led to the Demotion as related to him by Harris

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[PMF 244], the HR director’s investigative findings as to disruption and chaos in the Pathology

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department at the end of 2006 just prior to the Admin Leave [PMF 245], Dr. Dutt’s investigative

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findings regarding Plaintiff’s alleged misconduct at the end of 2006 [PMF 246], etc.

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Culberson’s spoliated notes were material evidence relating to the circumstances surrounding the

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Demotion, Admin Leave and Nonrenewal and therefore relevant to Plaintiff’s allegations that

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whistleblower retaliation, medical leave interference/retaliation and disability discrimination were

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motivating factors in the Demotion, Admin Leave and Nonrenewal, that Defendant County acted

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willfully in engaging in FMLA interference with respect to the Demotion, Admin Leave and

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Nonrenewal, that Defendant Harris acted with malice in causing violation of Plaintiff’s constitutional

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due process rights with respect to the Admin Leave, and that Defendants’ alternative explanations

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therefor are pretext, among other things.

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Finally, Scott Ragland, former President of the Medical Staff and member of the JCC

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(“Ragland”) [PMF 247], testified at his 8/22/08 deposition that no one ever contacted him regarding

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preservation of documents and evidence in connection with Plaintiff’s lawsuit. [PMF 248]. He also

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testified that he deleted all of his emails, including emails relating to Plaintiff [PMF 249], and sneered at

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Plaintiff’s consternation over the spoliation.

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Q. Okay. Well, why don’t we take the second question. Do you have this E-mail where Dr. Jadwin told you no one? A. No. Q. Is that because you deleted it as well? A. Yes. Q. Why did you delete these E-mails? A. Because I delete my E-mails. Q. You delete -- what was -- I’m sorry, Doctor. You just engaged in a facial expression. What was the significance of that? A. I think your question’s silly. [PMF 250].

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Despite the fact that Culberson recalled that Ragland had investigated Plaintiff just prior to the

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Admin Leave [PMF 251], that Ragland was one of Plaintiff’s most vocal critics and that Ragland is cited

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numerous times by Defendants in support of the many smears against Plaintiff contained in their motion,

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Ragland testified that he produced only a single document in all of discovery in this action, and even

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that was not in response to any discovery-related request from an attorney (as he never received one) but USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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on his own initiative. [PMF 252]. In the absence of the spoliated documents, Ragland was able to recall

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little. [PMF 253].

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The foregoing spoliation not only gives rise to an adverse inference defeating Defendants’ Motion for Summary Judgment, it demands sanction.

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2. Defendants Failed to Plead Affirmative Defenses

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Defendant County asserts a statutory affirmative defense to oppositional retaliation liability

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under FEHA (but not FMLA): that it engaged in the Demotion, Admin Leave and Nonrenewal for a

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legitimate business reason, excusing it from liability pursuant to 2 C.C.R. § 7287.8(b). (Doc. 262, 7:20-

9

8:25). Defendants also assert the affirmative defense that the amendment by which the Paycut was

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instituted on July 10, 2006 (“Paycut Amendment”) represented a new employment contract which

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completely supplanted, and extinguished all claims under, the old one. (Doc. 262, 30:17-31:5.5; 31:21-

12

22).

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Defendants failed to assert either of these defenses in their pleadings; nor do they have any

14

excuse for this dilatory behavior. As recently as last month, Plaintiff had filed the Second Amended

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Complaint (Doc. 241). After unsuccessfully opposing Plaintiff’s motion for leave to amend, Defendants

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filed their Answer to the Amended Complaint (Doc. 246) on October 27, 2008 – a month ago. Plaintiff

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has been prejudiced. These unpleaded defenses should be barred.

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B. ADVERSE EMPLOYMENT ACTIONS COMMON TO COUNTS Defendants’ argument that Plaintiff did not suffer “an adverse employment actions” is baseless.

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(Doc. 262, 8:1-2). Without citing any specific facts to support this conclusory statement, Defendants are

21

making a bald assertion of an “ultimate fact” and that is insufficient. See Schneider v. TRW, Inc. (9th

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Cir. 1991) 938 F2d 986, 990–991. For sake of economy, Plaintiff hereby incorporates Section II.C of his

23

Motion for Summary Judgment (Doc. 272, 4:24.5-8:14) in rebuttal of Defendants’ assertion.

24

Defendants elsewhere state that the Nonrenewal was not an adverse action because “Plaintiff had

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no right to a renewed employment agreement” and Plaintiff testified at his deposition that he did not

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want to have his contract renewed anyway. (Doc. 262, 6:5-9).

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First, Defendants misstate the law. Board of Regents v. Roth stands for the opposite proposition. There, the court looked for something “approaching a common law of re-employment” a la Perry v USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Sindermann and failed to find it. 408 U.S. 564, 578 n.16 (1972)(citing to Perry v Sindermann 408 U.S.

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593, 602 (1972)). Here, it is incontrovertible that Plaintiff had the equivalent of tenure. His position at

3

KMC was “core physician”, a permanent position [PMF 69-70]. In fact, since October 2000, the contract

4

of only one member of KMC’s sizable medical staff has not been renewed [PMF 71], and that was due

5

to a breakdown in negotiations over compensation. [PMF 254].

6

Second, Defendants misstate Plaintiff’s deposition testimony by suggesting he did not want

7

renewal of his contract anyway. [DMF 46]. Plaintiff testified he had expected his contract to be renewed

8

as of October 4, 2007, and that he would have accepted such renewal, albeit under protest over his

9

demoted status and reduced Base Pay. [PMF 254].

10 11

C. COUNTS 1 & 2: WHISTLEBLOWER RETALIATION Defendant County contends that Plaintiff engaged in only one instance of whistleblowing – on

12

November 28, 2006, when Plaintiff submitted complaints (“Outside WB Reports”) to the California

13

Department of Health (“DHS”), the College of American Pathologists (“CAP”) and the Joint

14

Commission for the Accreditation of Hospital Organizations (“JCAHO”). (Doc. 262, 4:12-15). But

15

California Health & Safety Code § 1278.5 also prohibits retaliation against any employee of a health

16

facility who complains to his employer about unsafe patient care or conditions. H&S § 1278.5(b)(1)(A);

17

see also Mendiondo v. Centinela Hosp. Medical Center 521 F.3d 1097, 1105 (9th Cir. 2008). Likewise,

18

California Labor Code § 1102.5(e) expressly protects employees of a government agency who make a

19

report to their employer.

20

Plaintiff submitted several complaints to KMC leadership, all of them within 120 days prior to

21

adverse employment actions, giving rise to a rebuttable presumption of retaliation which shifts the

22

burden of production to Defendants under H&S 1278.5(d). Under California Labor Code § 1102.6, the

23

proximity in time also shifts the burden of proof at trial to Defendants to demonstrate by clear and

24

convincing evidence that such adverse actions would have occurred for legitimate, independent reasons.

25 26

1. October Conference At a monthly KMC oncology conference held on October 12, 2005 (“October Conference”),

27

Plaintiff made a protected report to medical staff leadership on the medical appropriateness of a radical

28

hysterectomy for a KMC patient that had relied on inaccurate outside pathology reports, as well as USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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unsafe conditions created for other patients by the lack of a KMC policy requiring internal confirmatory

2

review of all outside pathology reports prior to treatment (“IPR”) [PMF 89]. Defendants Harris and the

3

County made the Credential Threat just days later, on October 17, 2005, retaliating specifically against

4

his October Conference presentation. [DMF 106-116].

5

2. PCCs

6

Starting January 9, 2006, Plaintiff made protected reports to Bryan regarding noncompliance

7

with H&S § 1602.5, specifically failure to maintain accurate and complete records of patient blood

8

transfusions (so-called product chart copies or “PCCs”) in accordance with accreditation standards.

9

These reports culminated in Plaintiff’s demand to Bryan on April 17, 2006, to set up a meeting with

10

County Counsel to resolve the PCC issue. [PMF 96, 97]. That same day, Bryan sent a memo to Plaintiff

11

threatening to demote him. [PMF 99]. Then, on April 28, 2006, Bryan forced Plaintiff onto Forced FT

12

Leave [PMF 123] and on July 10, 2006, the County demoted him. The California Department of Health

13

Services later determined during the course of an inspection that KMC was failing to comply with PCC-

14

related regulations [PMF 98].

15

3. Radical Prostatectomy On December 6, 2006, Plaintiff made a protected report to Culberson regarding a KMC patient

16 17

who was scheduled for imminent radical prostatectomy despite pathologic findings of cancer which

18

were inconclusive. [PMF 114]. The next day, Plaintiff was placed on Admin Leave. Subsequent biopsies

19

which were conducted ultimately came back negative for cancer, leading to conflicting diagnoses by

20

outside experts. [PMF 114]. The patient ultimately elected not to proceed with the prostatectomy. [PMF

21

266].

22

4. Martinez Tipoff

23

Defendants contend that Plaintiff’s tipoff of coming outside inspections to Gilbert Martinez

24

(“Martinez”), then-Manager of Laboratory Services, prior to Thanksgiving 2006 did not constitute

25

whistleblowing. But adverse actions against employees whom employers suspect or believe intend to

26

file workplace safety complaints constitutes whistleblower retaliation. Lujan v. Minagar 124

27

Cal.App.4th 1040, 1045-46 (2005). Martinez testified that Plaintiff warned him of coming outside

28

inspections around Thanksgiving and that he informed his supervisor, David Hill, Director of USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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1

Ambulatory Services (“Hill”), a few days later. [PMF 55]. Dr. Philip Dutt, Acting Chair of Pathology,

2

testified as PMK for the County that by the Monday following Thanksgiving 2006, he had had a

3

conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the

4

hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after

5

that weekend.” [PMF 255]. Dutt then suggested to Harris that KMC retain someone who had experience

6

with CAP inspections to conduct a mock unannounced inspection. Harris quickly approved Dutt’s

7

proposal on either the Friday or the Monday before Thanksgiving. [PMF 256]. Two weeks later, on

8

December 7, 2006, Defendants Harris and the County placed Plaintiff on Admin Leave. [PMF 58, 229].

9

5. Skull Flaps Included in the Outside WB Reports was Plaintiff’s protected report that patient skull flaps

10 11

(“Skull Flaps”) were being stored in an unlicensed KMC freezer in violation of H&S § 1635.1. [PMF

12

102, 110]. On January 4, 2007, Dutt received confirmation that Plaintiff had complained to CAP about

13

unlicensed tissue storage and informed Culberson. [PMF 111]. On May 1, 2007, 6 months after Defendants learned of Plaintiff’s tipoff to Martinez and 4

14 15

months after they learned of Plaintiff’s report to CAP about Skull Flaps, Defendant County informed

16

Plaintiff that it would not be renewing Plaintiff’s contract. [PMF 63]. During that time, Plaintiff was

17

continuously on Admin Leave, was restricted to his home during work hours, and was given no notice of

18

the charges against him, whether he would be permitted to respond or return to work, or even when the

19

leave would end. [PMF 59, 62].

20

6. Smear Campaign In response to his whistleblowing, Defendants targeted Plaintiff with a smear campaign of

21 22

disparate treatment, heightened scrutiny, retaliatory peer review and baseless accusations to label him

23

“arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, unfriendly, non-

24

collaborative, and uncooperative”. [Answer (Doc. 246), 12:14-22; Colarossi v. Coty USA, Inc. 97 Cal.

25

App. 4th 1142 (heightened scrutiny was retaliatory); Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803

26

(baseless accusations that Plaintiff not disabled and “milking the system” were harassing.)] [DMF 69-

27

190].

28

D. COUNTS 3 & 4: MEDICAL LEAVE RETALIATION USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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1

Defendants’ legal analysis regarding medical leave retaliation is woefully deficient.

2

First, Defendants suggest that the affirmative defense set forth in 2 C.C.R. § 7287.8(b) applies to

3

medical leave retaliation and then proceeds to launch into a discussion of Defendants’ allegedly

4

legitimate business reasons for their actions independent of medical leave retaliation. However, Section

5

7287.8(a) makes it clear that that regulation is related only to oppositional/participatory retaliation under

6

CFRA. The discussion in Defendants’ motion regarding Count 3 is irrelevant and insufficient.3 (Doc.

7

262, 7:7-9:7). Second, Defendants’ motion suggests that FMLA interference analysis devolves to an analysis of

8 9

whether Plaintiff’s medical leave rights were “chilled”, which in Defendants’ view is satisfied by

10

exhaustively cataloging all of the many ways Defendant County allegedly complied – and Plaintiff

11

allegedly didn’t comply – with CFRA and FMLA. (Doc. 262, 10:8-12:13). This entire analysis has no

12

support in caselaw and is irrelevant to a leave retaliation analysis. To establish medical leave retaliation, a plaintiff need only show: (1) his employer was covered

13 14

by CFRA/FMLA; (2) he was an employee eligible to take medical leave; (3) he exercised his right to

15

medical leave; and (4) thereafter, his employer subjected him to an adverse employment action because

16

of his exercise of his right to medical leave. See 2.C.C.R. § 7297.7; see also Bachelder v. America West

17

Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Elements 1-3 are undisputed that [PMF 4, 36, 120, 121]. As for element 4, the 9th Circuit in

18 19

Bachelder v. Am. W. Airlines, Inc. established that Plaintiff need only prove by a preponderance of the

20

evidence that her taking of FMLA-protected leave constituted a “negative factor” in the decision to

21

terminate her. 259 F.3d 1112, 1124 (9th Cir. Ariz. 2001). Under this analysis, the McDonnell Douglas

22

burden shifting framework does not apply. Id. at 1131. While Defendants’ brief did not contend that

23

Defendant County would have taken the actions it did anyway for legitimate, independent reasons,

24

consideration of Plaintiff’s medical leaves notwithstanding, such argument would have been to no avail

25 26 27 28

3

Section 7287.8(a) states: “It is unlawful for an employer or other covered entity to demote [. . .] or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Commission or Department or their staffs.” USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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anyway. Id. at 1131 (9th Cir. Ariz. 2001). In short, once Plaintiff establishes that his medical leaves

2

were a negative factor in the Demotion and the Nonrenewal, the analysis ends there. Liability is

3

established.

4

The 9th Circuit further stated in a footnote that the defendant’s consideration of the plaintiff’s

5

“continued unavailability” further established that the plaintiff’s medical leave had been a negative

6

factor in her termination:

7

12

We note that it appears fairly clear in any event that Bachelder would not have been fired had she not taken the protected leave. The supervisor who recommended that Bachelder be fired admitted in his deposition that “the basis for her termination, for the most part, was availability,” and characterized her on-time performance and Employee of the Month deficiencies as “minor performance issues.” Moreover, America West’s witnesses testified at the trial that Bachelder’s attendance was the primary reason for firing her, and the district court ultimately found that Bachelder failed to contradict their testimony that “the likely reason for her termination …was because of her continued unavailability in 1996.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir. Ariz. 2001) n22 (emphasis added).

13

Here, it is incontrovertible that Defendant County considered Plaintiff’s medical leave as a

8 9 10 11

14

negative factor in the Demotion and Nonrenewal. In the case of the Demotion, Plaintiff’s “continued

15

unavailability” due to medical leave wasn’t just a negative factor, it was the only factor. Defendants’

16

own motion asserts: “The evidence is undisputed that Defendants removed Plaintiff from the

17

chairmanship only because of his physical absence from the hospital.” (Doc. 262, 31:9-10) (emphasis

18

added). When Bryan initiated the KMC procedure to demote Plaintiff, his memo to the JCC stated that

19

his recommendation was based on Plaintiff’s “unavailability for service because of extended medical

20

leaves” and “solely based on his continued non-availability”. [PMF 17] (emphasis added). The JCC

21

then “took Bryan’s advice and they did it for the reason that he gave in his memorandum”. [DMF 33].

22

As in the case of Bachelder, it is incontrovertible that Plaintiff was demoted for “continued non-

23

availability” due to protected leave.

24

Regarding the Nonrenewal, Watson testified: “My understanding was that [Plaintiff] had -- he

25

had been on medical leave, family leave, and had requested even more leave, and that for that reason

26

and the fact that he was suing us, that we decided not to renew his contract.” [PMF 68]. It is

27

incontrovertible that Plaintiff’s medical leave was also a negative factor in the Nonrenewal.

28

In fact, Defendant County, through its PMK, testified that punishing employees for taking USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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medical leave was “sometimes” appropriate. [PMF 150].

2

E. COUNTS 4 & 5: MEDICAL LEAVE DENIAL/INTERFERENCE

3

Defendants contend that “Every request for leave that Plaintiff made was granted.” (Doc.

4

262:10:10) and exhaustively catalog all of the many ways Defendants allegedly complied with medical

5

leave laws (Doc. 262, 11:7-12:13). However, even if true, 99 instances of compliance won’t blot out 1

6

instance of egregious non-compliance. And the evidence establishes that such egregious non-compliance

7

did occur. Defendants’ discussion is therefore insufficient.

8

An employer’s suggestion that an employee take different dates of leave in order to

9

accommodate the employer can constitute impermissible FMLA interference. See Williams v. Shenango,

10

Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997) (employer’s motion for summary judgment denied where

11

suggestion of rescheduling leave may constitute interference with FMLA rights). The evidence

12

establishes that, after Plaintiff requested an extension of his medically-required part-time medical leave

13

on April 26, 2006 [PMF 13, 14], Defendant Bryan refused and forced him onto full-time medical leave

14

on April 28, 2006, so as to exhaust his medical leave as soon as possible. [PMF 228].

15

Defendants take special pains in their brief to smear Plaintiff with many alleged violations of

16

Defendant County’s internal procedures. (Doc. 262, 10:11-13; 11:2-112). Plaintiffs disputes them [DMF

17

11-22]; moreover, they have no relevance to Counts 4 and 5 and are insufficient. Plaintiff was required

18

only to provide reasonable notice to Defendant County of his need for medical leave, including its

19

expected timing and length, and that was all he was legally required to do. Gov’t C. § 12945.2; CACI

20

No. 2600; Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998); see also 2

21

C.C.R. § 7297.1(2). Sandra Chester, Defendant County’s then-HR Director, testified in deposition that

22

Plaintiff’s email request to Bryan for extension of part-time medical leave on March 16, 2006, the day

23

after his initial medical leave expired, was timely:

24 25 26 27

Q: You know, so this e-mail, under your normal program in your tenure at KMC, would constitute reasonable notice of the need for an extension of his medical leave that should have generated an employee information packet being sent to him at that time. Is that correct? A. Absolutely. [PMF 128]. It is incontrovertible that Plaintiff gave reasonable notice of his need for an extension of medical

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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leave. Defendants’ allegations of Plaintiff’s noncompliance with FMLA/CFRA are insufficient.

2

F. COUNT 9: DEPRIVATION WITHOUT DUE PROCESS

3

Defendants allege Plaintiff cannot show he had a constitutional property right to chairmanship

4

and Base Pay, Professional Fees, or continued employment. Plaintiff can show by incontrovertible

5

evidence that he did.

6 7 8 9

1. Demotion Plaintiff had a constitutional property right to his Base Pay. The Demotion and Paycut resulted in a reduction and deprivation of over $100,000 of his Base Pay. Under California law, a contract-based entitlement constitutes a constitutionally protectable

10

interest. Roberts v. College of Desert 870 F.2d 1411, 1416 (9th Cir. 1988). Plaintiff’s employment

11

contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff

12

would receive Base Pay of $287,529, and that Plaintiff would be chair of KMC’s pathology department

13

[PMF 176]. Moreover, the employment contract barred Defendant County from reducing Plaintiff’s

14

Base Pay, removing Plaintiff from chair or terminating or otherwise modifying the Contract at will,

15

without cause, or without Plaintiff’s consent [PMF 177].

16

To date, Defendant County has not removed a department chair without cause. [PMF 178]. In

17

fact, Defendant County has expressly recognized the constitutional right of chairs not to be demoted

18

without due process. JCC minutes regarding the contemplated demotion of the chair of the OB-GYN

19

department stated: “The problem is we have tied a portion of the chair’s compensation to that position,

20

that is a property right. Dr. Perez is entitled to due process hearing for this reason.” [PMF 257]. It is

21

undisputed that a portion of Plaintiff’s chair compensation was likewise tied to his chair position. [PMF

22

47]. Plaintiff was likewise entitled to due process.

23

Moreover, Defendants’ contention that a Base Pay reduction without cause was already

24

encompassed and provided for in Plaintiff’s contract is contradicted by Defendants’ own repeated

25

insistence that the Paycut Amendment was in fact necessary after the Demotion. [PMF 47, 48]. If

26

Defendants’ contention were correct, no contract modification should have been necessary. However,

27

Defendants were acutely aware that the opposite was true, that the Demotion and Paycut in fact

28

necessitated an amendment. Defendants therefore preconditioned Plaintiff’s continued employment on USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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his execution of just such an amendment. [PMF 47, 48, 179]. In short, it is incontrovertible that Plaintiff

2

had a constitutional property right to the over $100,000 reduction in his Base Pay.

3

Defendants state an affirmative defense that the Paycut Amendment was a new contract that

4

completely supplanted and extinguished all rights under the old one. However, an amendment of a

5

contract cannot be presumed to be a novation; that requires evidence that the parties intended the rights

6

and obligations of a new contract be substituted for those of the old one. Ayoob v. Ayoob (1946) 74

7

Cal.App.2d 236, 250-251; Blumer v. Madden (1932) 128 Cal.App. 22, 24. Defendants present no such

8

evidence. In fact, Plaintiff placed Defendants on notice by letter dated June 29, 2006, that he intended to

9

file suit challenging the Demotion. [PMF 184].

10

Defendants further argue frivolously that Defendant Bryan had no part in the Demotion and is

11

therefore relieved of liability. However, it is undisputed that Bryan initiated the demotion process in the

12

first place by submitting a recommendation to the JCC that Plaintiff be removed from chairmanship, and

13

that the JCC “took Bryan’s advice and they did it for the reason that he gave in his memorandum”.

14

[DMF 33].

15

2. Admin Leave

16

Plaintiff had a constitutional property right to Professional Fees. His employment contract

17

expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would be paid

18

Professional Fees [PMF 190]. Plaintiff’s Professional Fees historically amounted to over $100,000 per

19

year. [PMF 25]. When Defendants County and Harris decided to place Plaintiff on Admin Leave [PMF

20

229], they barred him from earning Professional Fees, depriving him of his constitutional property right

21

to them. [PMF 25, 56].

22

In fact, Defendant County was acutely aware of Plaintiff’s contractual interest in Professional

23

Fees. In his letter to Plaintiff regarding the Paycut, Culberson explained that, as a demoted staff

24

pathologist with a drastically reduced base salary, Plaintiff would nevertheless be able to take advantage

25

of his reduced administrative duties in order to increase his Professional Fees-based income [PMF 191].

26

Ironically, it was Culberson who then denied Plaintiff the opportunity to earn those same Professional

27

Fees when he decided to place Plaintiff on Admin Leave [PMF 192].

28

More importantly, Defendant County’s own policy explicitly states that Defendants were not USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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permitted to place Plaintiff on Admin Leave, and thereby deprive Plaintiff of Professional Fees, in the

2

absence of “good cause”. “The hallmark of property ... is an individual entitlement grounded in state

3

law, which cannot be removed except ‘for cause.’” Shoemaker v County of Los Angeles (1995 2d. Dist.)

4

37 Cal.App.4th 618, 630 (citing Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430).

5

Defendants’ motion admits: “Plaintiff was placed on paid administrative leave on December 7, 2006

6

pursuant to the Kern County Policy and Procedures Manual” (“Manual”). (Doc. 262, 33:11-12).

7

Paragraph 139 (“Disciplinary Actions”) of the Manual states in relevant part:

8 9 10 11 12 13

Any employee may be dismissed, suspended, reduced in rank and/or compensation, reprimanded or otherwise disciplined for any action or conduct which in the judgment of the appointing authority provides good cause for discipline under the Civil Service Rules or other laws, regulations, or policies [. . . .] .6 Administrative Leave with Pay. A department head may place an employee on administrative leave with pay if the department head determines that the employee is engaged in conduct posing a danger to County property, the public or other employees, or the continued presence of the employee at the work site will hinder an investigation of the employee’s alleged misconduct or will severely disrupt the business of the department [. . . .] [PMF 258] (emphasis added). It is incontrovertible that Plaintiff had a contractual right to earn Professional Fees and that

14 Defendants Harris and County were not permitted to place Plaintiff on Admin Leave, and deprive 15 Plaintiff of Professional Fees, without cause. Plaintiff thus had a constitutional property right to those 16 Professional Fees and was entitled to due process relating to their deprivation. 17 Defendants make a frivolous argument that Defendant Harris had no part in placing Plaintiff on 18 Admin Leave and is therefore relieved of liability. (Doc. 262, 32:19-21). However, in its verified 19 response to Plaintiff’s Interrogatory No. 42, Defendant County identified Harris as one of 4 participants 20 in the decision to place Plaintiff on administrative leave [PMF 229], depriving him of Professional Fees 21 without any due process whatsoever. [PMF 24, 26, 60]. 22 23

3. Nonrenewal A party’s expectation of continued employment may be based on rules or understandings,

24 entitling him to constitutional due process. Roth v. Veteran’s Admin. of United States 856 F.2d 1401, 25 1409 (“If Roth was a permanent, non-probationary VA employee, he was clearly entitled to procedural 26 protections before being deprived of his job”.) (emphasis added). In Board of Regents v. Roth, a case 27 which Defendants incorrectly cite in support of their motion, the court considered the question of 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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whether a plaintiff had a constitutional right to due process with respect to continued employment by

2

looking for something “approaching a common law of re-employment” a la Perry v Sindermann. 408

3

U.S. 564, 578 n.16 (1972). Perry v Sindermann established:

4 5 6 7 8

A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of this service -- and from other relevant facts -that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a “common law of a particular industry or of a particular plant” that may supplement a collective-bargaining agreement, Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 579, so there may be an unwritten “common law” in a particular university that certain employees shall have the equivalent of tenure. 408 U.S. 593, 602 (1972). Here, it is incontrovertible that Plaintiff had the equivalent of “tenure” and was a “permanent”,

9 non-probationary employee of Defendant County. His position at KMC was “core physician”, a 10 permanent position as acknowledged by Bryan in deposition testimony. [PMF 69]. There was a mutually 11 explicit understanding that his contract would be continuously renewed [PMF 70]. Defendant County 12 had a policy of renewing the contracts of all of its non-probationary physicians [PMF 70] – since 13 October 2000, the contract of only one member of KMC’s sizable medical staff has not been renewed 14 [PMF 71] , and that was due to a breakdown in negotiations over compensation. [PMF 254]. 15 It is incontrovertible that there was a “common law of re-employment” at KMC, that Plaintiff 16 was a “permanent”, non-probationary employee, and that Plaintiff therefore had a constitutional property 17 right to continued employment by Defendant County. 18 19

4. Qualified Immunity Defendants argue Bryan and Harris enjoy qualified immunity because they did not violate a

20

clearly established right. (Doc. 262, 32:1-23). However, the 9th Circuit has established that when a

21 property interest is determined to be constitutionally protected under the Perry v Sindermann “mutually 22 explicit understandings” standard, it is clearly established and the defendant is not entitled to qualified 23 immunity. Roberts v. College of Desert 870 F.2d 1411, 1416-17 (9th Cir. 1988) (“Because we have 24 found that the understanding between Roberts and Dr. Stout satisfies the Perry standard, the defendants 25 are not entitled to immunity from liability for the College’s failure to provide Roberts the rudiments of 26 due process.”). Moreover, where pre- and post-deprivation procedures are absent, the offending officials 27 are not entitled to qualified immunity. Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998) 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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(“Presumably, when an individual is given neither a predeprivation hearing nor a postdeprivation

2

hearing at which to contest the taking of his property, his clearly established due process rights have

3

been violated, because under no reading of Mathews could such a taking be constitutional. In that case,

4

the offending officials would not be entitled to qualified immunity.”).

5

Plaintiff has already established supra that Plaintiff and Defendants had a mutually explicit

6

understanding that (i) Plaintiff would not be subjected to demotion and Base Pay reduction absent cause,

7

and (ii) Plaintiff would not be placed on administrative leave and deprived of his contractual right to

8

Professional Fees absent cause. It is also undisputed that Defendants gave Plaintiff neither a

9

predeprivation nor a postdeprivation hearing in the case of either the Demotion or the Admin Leave (In

10

the interests of economy, Plaintiff hereby incorporates the discussions contained in Sections II.L.4 and 5

11

of his motion for summary judgment (Doc. 272, 28:2-29:3; 29:20-27)). Hence, Plaintiff has

12

incontrovertibly established that neither Bryan nor Harris is entitled to qualified immunity with respect

13

to the Demotion and Admin Leave, respectively.

14

5. Stigma

15

Defendants’ discussion regarding stigma is inapposite. Stigma is relevant to establishing a

16

deprivation of liberty, not property. Smith v Siegelman (2003, 11th Cir. Ala) 322 F.3d 1290, 1296.

17

Plaintiff does not allege deprivation of liberty.

18 19

G. COUNTS 3, 10 AND 11: OPPOSITIONAL/PARTICIPATORY RETALIATION Both FEHA and FMLA provide protection for an employee who opposes any discriminatory

20

practices or participates in any proceeding under Gov’t C. §§ 12900 to 12996. [Gov’t. C. § 12940(h); 29

21

U.S.C. § 2615(b)]. The protected activity of “participation” is expressly defined within the code as “filed

22

a complaint, testified, or assisted in any proceeding under [Gov’t C. §§ 12900 through 12996].” Id.;

23

U.S.C. § 2615(b)(1).

24

Defendant County asserts a statutory affirmative defense to oppositional retaliation liability

25

under FEHA (but not FMLA) pursuant to 2 C.C.R. § 7287.8(b). As for Defendants’ allegedly

26

“legitimate business reasons” for the Demotion and the Admin Leave, Defendants cannot satisfy their

27

burden of proof with incontrovertible evidence. Regarding the Demotion, it is undisputed that

28

Defendants demoted Plaintiff solely due to unavailability for medical leave. [DMF 33, PMF 17]. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Page 23 of 29

1

Plaintiff’s unavailability due to medical leave cannot be a legitimate business reason for employment

2

action, as established in Section II.D supra and by Bachelder v. America West Airlines, Inc., 259 F.3d

3

1112 (9th Cir. 2001).

4 5 6

Regarding the Admin Leave, Plaintiff disproves Defendants’ alleged reasons as non-credible pretext supra at •. Regarding the Nonrenewal, Defendants’ brief does not even bother to allege a “legitimate

7

business reason” (Doc. 262, at 8:24-9:7). Instead, Defendants focus their efforts on contradicting the

8

sworn deposition testimony of Ray Watson, former Chair of the Board of Supervisors (“Watson”),

9

through use of “sham” declarations. However, a party cannot create an issue of fact by a declaration

10

contradicting his or her own deposition or other sworn testimony. See Block v. City of Los Angeles (9th

11

Cir. 2001) 253 F3d 410, 419, fn. 2. The same rule applies to postdeposition affidavits that contradict the

12

affiant’s deposition testimony. Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908;

13

Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169.

14

Here, Watson testified at his deposition that Defendant County decided not to renew Plaintiff’s

15

contract in retaliation for his filing the instant lawsuit. Watson was asked twice if he recalled clearly that

16

this was the case and each time he answered yes:

17 18 19 20 21 22 23 24 25 26

Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwin’s physical absence being a reason for his nonrenewal of his contract? A. Well, it could be that. It could be the fact that I think by then he was -- probably was suing us. So why would you want to establish a contractual relationship with somebody who’s suing you. Q. Okay. Well, he was also suing you at the time of his removal or actually at the time of his --no, he wasn’t. He wasn’t. Okay. But I mean, you say why would you establish a contractual relationship with someone who’s suing you, right? A. Right. Q. Was that -- does that mean -- are you just speculating now, just guessing, or was that a consideration for his nonrenewal? A. Well, I remember it being discussed. […] Q. Okay. But you recall it being discussed at the JCC meetings? A. Yes. [PMF 259]. Watson then re-affirmed a third time – volunteering it on his own initiative – that oppositional

27 retaliation was an additional motivating factor for the Nonrenewal: 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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3

Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was that Dr. Jadwin wasn’t available for work; is that correct or -A. My understanding was that he had -- he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract. [PMF 260].

4

Defendants resort to frivolous arguments in their bid to contradict Watson’s testimony, setting up

1 2

5 6

fallacious strawman arguments and knocking them down one-by-one. •

Defendants point out Watson testified that he didn’t recall discussion of Plaintiff’s termination or

7

denial of his medical privileges. This proves nothing about the Nonrenewal and whether a

8

discussion about it occurred. Defendant County could have contemplated nonrenewal without

9

considering immediate termination or medical privileges denial. A discussion of one doesn’t

10

necessitate or preclude a discussion of the others. Moreover, the testimony Defendants cite to

11

appeared over 100 pages and 2 hours earlier in the deposition transcript than the Nonrenewal

12

discussion and arose in response to a completely unrelated line of questioning. [PMF 261].

13

•

Defendants then point out Watson couldn’t recall a formal JCC vote to not renew Plaintiff’s

14

contract. This proves nothing about whether or not the JCC decided to not renew Plaintiff’s

15

contract A JCC decision is not preconditioned on a JCC vote occurring. In any event, Watson

16

confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal.

17

•

Defendants then reference declarations submitted by members of the Kern County Board of

18

Supervisors asserting that the Board never discussed or made any decision regarding nonrenewal

19

or expiration of Plaintiff’s contract. This proves nothing about whether such a decision or

20

discussion occurred at the JCC level. The absence of a decision by the Board of Supervisors in

21

no way precludes a decision being made by the JCC. Again, Watson confirmed several times that

22

he clearly recalled the JCC deciding on the Nonrenewal.

23

Watson’s testimony is more than clear. Defendants’ sham declarations should be disregarded.

24

There is no question that Defendant County engaged in oppositional/participatory retaliation against

25

Plaintiff when it decided not to renew his contract. Defendants’ motion should be denied.

26 27 28

H. COUNT 6: DISABILITY DISCRIMINATION Plaintiff incorporates by reference the points and authorities set forth in Sections II (I) & III (I) of Plaintiff’s Corrected Motion for Full or Partial Summary Judgment regarding his Sixth Claim for USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

20

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

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1

Disability Discrimination and Defendant’s Eleventh Affirmative Defense re Workers Compensation

2

Preemption.

3

Contrary to Defendant’s assertion, Plaintiff has expressly stated that his Sixth Claim for

4

Disability Discrimination if brought against Defendant County. [Defendants’ Motion (Doc. 262) at

5

22:14-23; SAC (Doc. 241) at ¶188, 35:16-18].

6

Also contrary to Defendants’ assertion, the FEHA covers both industrial and non-industrial

7

injuries. [Defendants’ Motion (Doc. 262) at 13:7-9; City of Moorpark v. Superior Court, 18 Cal. 4th

8

1143 (1998). Further, Defendants’analysis of Plaintiff’s disability claim under the ADA is inapposite

9

because Plaintiff is bringing his claim under the FEHA. [SAC (Doc. 241) at ¶ 188, 35:16-18]. The

10

California Legislature has rejected both the ADA “substantially limits” test and the work limitation test

11

relied on by Defendants. [Gov’t C. §§ 12926.1(c), 12926(i)(1)(B); Defendants’ Motion (Doc. 262) at

12

14:10-13].

13

It is undisputed that Plaintiff suffered from known chronic depression that limited his ability to

14

work full-time as Chair of Pathology at KMC from December 16, 2005 to September 6, 2006, requiring

15

accommodation in the form of reduced work schedule medical/recuperative leave. [DMF 10, 14, 65 &

16

67; PMF (1/9/06 memo) 144-148 & 154]. It is undisputed that Defendant County accommodated

17

Plaintiff’s chronic depression from December 16, 2005 to April 28, 2006, when Defendant Bryan forced

18

Plaintiff to take full-time leave until October 4, 2006. [DMF 20-21; PMF 155, 159]. The evidence shows

19

that Plaintiff was “otherwise qualified” because Defendant Bryan admitted that Plaintiff was

20

successfully performing his duties as Chair of Pathology with accommodation just prior to revoking

21

Plaintiff’s accommodation. [PMF 141, 227 ].

22

Defendants’ own admissions establish that Defendant Bryan’s revoking of Jadwin’s

23

accommodation was the sole reason for the Demotion and Paycut, and a motivating reason for the

24

Nonrenewal, and are direct evidence of disability discrimination. [Humphrey v. Memorial Hosps. Assn.

25

(9 Cir. 2001) 239 F. 3d 1128, 1139-1140 (“…the conduct resulting from a disability is considered part of

26

the disability, rather than a separate basis for termination. The link between the disability and the

27

termination is particularly strong where it is the employer’s failure to reasonably accommodate a known

28

disability that leads to discharge for performance inadequacies resulting from that disability”); PMF USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

21

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

1 2

Document 275

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Page 26 of 29

150]. A prima facie case of age discrimination may be established by either (a) direct evidence of

3

discriminatory intent, Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985), or (b) by proof of

4

disparate treatment based upon circumstantial evidence using the standards set forth in McDonnell

5

Douglas v. Green, 411 U.S. 792 (1973). Direct evidence of discriminatory intent cannot be rebutted by

6

articulating or producing evidence of legitimate, non-discriminatory reasons. [Brown v. Sierra Nevada

7

Memorial Hospital, 849 F.2d 1186 (9th Cir. 1988)]. Because Plaintiff relies on direct evidence to

8

establish Defendant County’s discriminatory motive, the McDonnell-Douglas burden-shifting

9

framework does not apply, and Defendant County is precluded from arguing that it had a “legitimate”

10

reason for the Demotion, Paycut, and Nonrenewal.

11

If the court does not strike Defendants’ improper Section E, then it must consider Defendants’

12

post-hoc attempt to attribute the Demotion, Paycut, and Non-renewal to any reasons than those already

13

admitted as evidence of pretext. [EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 ("[A]

14

factfinder could infer from the late appearance of [the employer's] current justification that it is a post-

15

hoc rationale, not a legitimate explanation for [its] decision not to hire [the employee]."); Payne v.

16

Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 ("A rational trier of fact could find that [the

17

employer's] varying reasons shows that the stated reason was pretextual, for one who tells the truth need

18

not recite different versions of the supposedly same event.").

19

To the extent that Defendants offer evidence of Plaintiff’s conduct to justify his placement on the

20

Admin Leave [DMF 69-190, PMF 150, 267], the Court view the totality of the circumstances in the light

21

of the fact that both Defendant County and Dr. Dutt have admitted harboring unlawful animus towards

22

individuals with disabilities who may need to take medical/recuperative leave. [O’Mary v. Mitsubishi

23

Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) (“On occasions where there is

24

evidence of clear discriminatory intent, it is like a gold nugget which happens to be lying on the ground.

25

You do not throw it away as if it were so much dross. To put the idea in typical evidentiary terms,

26

evidence of clear discriminatory intent is overwhelmingly probative in a discrimination case because it

27

shines the spotlight on the very thing which is the focus of the litigation.”); [DMF 69-190, PMF 150]

28

Defendant County and Dr. Dutt acted on this unlawful animus as soon as Plaintiff indicated his intent to USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

22

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

Document 275

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1

return to work from medical/recuperative leave. Dr. Dutt asked County Counsel if he could prevent Dr.

2

Jadwin from taking any further leave as a condition of his return to work. [PMF 267]. The disparate

3

terms and conditions regarding Plaintiff's hours of work and productivity contained in Amendment 1 to

4

Dr. Jadwin’s employment contract of 11/12/02 achieve this goal. [PMF 267].

5

Defendant County's and Dr. Dutt's admitted unlawful animus also taints all of their dealings with

6

Plaintiff subsequent to his taking medical/recuperative leave. [Dee v. Vintage Petroleum, Inc. (2003)

7

106 Cal.App.4th 30 (supervisor's pattern of mistreatment is illuminated by a single racial remark);

8

Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) (Where supervisors and

9

other harassers used epithets with clear racial content, it can be inferred “that racial animus motivated

10

not only [their] overtly discriminatory conduct but all of [their] offensive behavior toward [plaintiffs]".

11

Dr. Dutt participated in the smear campaign targeting Dr. Jadwin in retaliation for his whistleblowing,

12

subjecting him to heightened scrutiny and unwarranted criticism until Plaintiff was placed on Admin

13

Leave. [DMF 69-190, PMF 267].

14

The evidence is so strongly in Plaintiff’s favor that the court must deny Defendants’ motion for

15

summary judgment, and should grant summary adjudication on all elements of Plaintiff’s disability

16

discrimination claim except the amount of damages.

17 18

I. COUNT 7: FAILURE TO ACCOMMODATE Plaintiff incorporates by reference the points and authorities set forth in Section II(K) of

19

Plaintiff’s Corrected Motion for Full or Partial Summary Judgment, and Sections D, E, & H, infra.

20

An employer is required to modify it's policies and procedures to provide reasonable

21

accommodation. [Gov't Code § 12926(n) Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263

22

(holding job open while employee takes recuperative leave was reasonable accommodation).

23

Defendants’reliance on Swonke v. Sprint, Inc. 327 F.Supp.2d 1128(N.D. Cal. 2004) for support of its

24

contention that an employer may force an employee to take full-time leave is also misplaced. Swonke’s

25

doctor’s notes precluded him from performing any work, thus requiring his employer to place him on

26

full-time leave until he obtained a release to work. Plaintiff’s psychiatrist never precluded him from

27

performing any work. [PMF 146]. It was illegal for Defendant County to require Dr. Jadwin to take

28

more recuperative leave than medically necessary. DFEH v. California State University, FEHC Dec. No. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

23

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

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1

87-28 at page 9 (forcing complainant to take involuntary leave is not a reasonable accommodation);

2

DFEH v. Ford of Simi Valley, Inc. (2005) FEHC Dec. No. 06-02 at page 12 (employer failed to

3

accommodate complainant by failing to return him to work on his release to part-time work).

4

Raine v. City of Burbank 135 Cal.App. 4th 1215 (2006) is also distinguishable. In Raine, the City

5

was not required under FEHA to convert an injured police officer’s temporary, light-duty

6

accommodation in a front-desk position into a permanent position once the officer’s temporary disability

7

became permanent because the officer sought reclassification of front-desk position from a civilian

8

position to a sworn-officer position, and city was not required to reclassify the front-desk job to

9

accommodate the officer. Id. at 901, 1223-1124. Unlike Raine, Dr. Jadwin’s disability was “chronic” not

10

“permanent”; Dr. Jadwin did not request permanent light work as an accommodation, and no

11

reclassification of Dr. Jadwin’s position was required to allow him to work part-time as an

12

accommodation.

13

As an accommodation, an employer must provide an employee with disabilities with similar

14

assistance and benefits that it offers others. Prilliman v. United Air Lines, Inc. 53 Cal.App.4th 935, 950-

15

51 (1997). Defendant Bryan’s explanation” of why he conditioned Dr. Jadwin’s continuance as Chair of

16

Pathology on his full-time attendance at KMC is pretextual. Defendant County allowed Dr. Tai Yoo

17

attend KMC part-time as Chair of Psychiatry, so must also allow Dr. Jadwin to attend KMC part-time as

18

Chair of Pathology as an accommodation of his disabilities. [DMF 25]. Moreover, if Defendant County

19

believed that Plaintiff’s accommodation wasn’t working, then it had a duty to engage in an interactive

20

process regarding other possible accommodations. Humphries v. Memorial Hospitals

21

Association (9 Cir. 2001) 239 F.3d 1128, 1138 (“...the employer’s obligation to engage in the

22

interactive process extends beyond the first attempt at accommodation and continues when the employee

23

asks for a different accommodation or where the employer is aware that the initial accommodation is

24

failing and further accommodation is needed.”).

25

J. COUNT 8: INTERACTIVE PROCESS

26

Plaintiff incorporates by reference the points and authorities set forth in Section II(L) of

27

Plaintiff’s Corrected Motion for Full or Partial Summary Judgment. Plaintiff incorporates by reference

28

the points and authorities set forth in Sections D-F, infra. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

24

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

1

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Page 29 of 29

The ten minute meeting on April 26, 2006 was to inform Plaintiff of his leave balance, not to

2

engage in an interactive process. [DMF 20, 22,]. Nor was Steven O'Connor sufficiently knowledgeable

3

or prepared to answer any questions that Plaintiff might have regarding his leave.

4

Defendant County failed to engage in good faith in an interactive consultation with Plaintiff.

5

III. CONCLUSION

6

For the foregoing reasons, the Court should deny Defendants’ Motion for Summary Judgment in

7

its entirety and grant Plaintiff’s Motion for Summary Judgment.

8 9

RESPECTFULLY SUBMITTED on December 1, 2008.

10 11 12 13 14

/s/ Eugene D. Lee 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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

15 16 17 18 19 20 21 22 23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

1 2 3 4 5

Document 282

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Page 1 of 115

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

6 7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

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

12 13 14 15 16 17 18

v. COUNTY OF KERN, et al., Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)] Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

19 20 21 22 23 24 25 26 27

Plaintiff DAVID F. JADWIN, D.O., hereby submits the following statement of disputed and undisputed material facts in support of his Opposition to Defendants’ Motion for Summary Judgment

28 Π’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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

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

Δ’s MATERIAL FACTS (“DMF”)

Document 282

Filed 12/01/2008

Δ’S SOURCE

Π’S RESPONSE

1. First Employment Contract between Kern Medical Center (hereinafter referred to as KMC) and David F. Jadwin, D.O. (hereinafter referred to as Jadwin) was entered into on October 24, 2000.

DFJ00025 -00046

Undisputed.

a) Article 1, ¶2 incorporates attached Exhibit A as a part of the agreement

DFJ00043 -46

Undisputed.

Page 2 of 115

LEGAL RELATIONSHIP BETWEEN KERN MEDICAL CENTER AND DAVID F. JADWIN, D.O.

b) Article 5, ¶20 states, in part, “The parties recognize that each is possessed of legal knowledge and skill, and that this Agreement is fully understood by the parties, and is the result of bargaining between the parties.”

Undisputed that the document says what it says.

c) Article 5, ¶22 states, in part, “This Agreement, including all attachments hereto, contains the entire agreement between the parties relating to the services, rights, obligations and covenants contained herein and assumed by the parties respectively.”

Disputed only as to the word “Agreement”. Article 5 ¶ 22 actually uses the word “document”, “This document, including all [….]”.Undisputed that the document says what it says.

2. Employment Verification letter gives original date of hire as December 3, 2000.

DFJ00358

Undisputed.

3. Jadwin received the Medical Staff Bylaws.

0000202203

See evidentiary objections.

4. Medical Staff Bylaws.

0000272358

Undisputed.

28 Π’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

2

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

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

5. Responsibilities and duties of the pathology dept. chair are set out in the KMC Medical Staff Bylaws, sections 6. through 6.4-3.

Document 282

DFJ00046

Filed 12/01/2008

Page 3 of 115

See evidentiary objections. Disputed: Sections 6. through 6.4-3 of the Bylaws do NOT contain any such provisions.

6. Second Employment 0001479Contract between KMC and 1499 Jadwin was effective October 5, 2002.

Undisputed.

a) Exhibit A to the Second Employment Contract: Job Description, David F. Jadwin, M.D., Pathology Chairman.

Undisputed.

i) First paragraph, 3rd line reads “This is a full-time position requiring 48 hours of service, on average, per week.”

Disputed in that Article II.1.A. of the Second Employment Contract provides that Plaintiff was required to work “no less than forty [40] hours per week”. (Bates 0001480). Otherwise, undisputed that the document says what it says.

ii) Second page, paragraph 6 states “A standard workweek will be 48 hours per week. Actual hours may vary weekto-week according to specific assignments; however, the objective is to achieve 2112 worked hours during a twelve-month period.”

Disputed in that Article II.1.A. of the Second Employment Contract provides that Plaintiff was required to work “no less than forty [40] hours per week”. (Bates 0001480). Otherwise, undisputed that the document says what it says.

b) Section V, ¶10 states “Core physician shall be employed by the County of Kern pursuant to the terms of this Agreement and the medical staff bylaws of KMC. Core physician acknowledges that he or she will not be deemed a classified employee, or have any rights or protections under the County’s Civil Service Ordinance, rules or regulations.”

Undisputed that the document says what it says.

25 26

FMLA/CFRA RETALIATION

27 28 Π’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

3

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

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Document 282

7. Letter to Peter Bryan DFJ00723 (hereinafter referred to as Bryan) from Jadwin, dated 1/9/06, requesting administrative leave with pay until hostile environment is corrected. He demanded action on 1) sending transfusion Product Chart Copies (hereinafter referred to as PCCs) to the blood bank; 2) KMC’s alleged lack of compliance with their weekly oncology conferences by reporting themselves (KMC) to the American College of Surgeons (hereinafter referred to as ACS); 3) reviewing time limits on pathology presentations; and 4) implementing protocol of collection of Fine Needle Aspiration (hereinafter referred to as FNA) specimens.

Filed 12/01/2008

Page 4 of 115

See evidentiary objections. Disputed: Plaintiff states on DFJ000723 that “This harassment had led me develop depression, anxiety and insomnia. Although I enjoy much of my work at KMC, it is not possible for me to continue to work under this form of harassment.” Under FEHA, this letter placed Defendants on notice that Plaintiff was suffering a recurrence of his chronic depression and that the leave he was requesting was a reasonable accommodation of his disability. See evidentiary objections. Otherwise, undisputed that the document says what it says.

7A. Dutt recalled Jadwin’s threat of taking a leave of absence until the medical staff and the administration apologized to him.

Dutt Depo., 8/20/08, pgs. 52:553: 18

See evidentiary objections.

8. Jadwin conducted a vigorous job search in the first six months of 2006. He was actively looking for another job as there are inquiries into at least six other full-time positions.

DFJ02422 -2459

See evidentiary objections: Irrelevant to proving disability under FEHA vis-à-vis ADA.

a) “You know, I wish I could go back because I enjoyed that job. I mentioned multiple times during my recruitment and elsewhere that that was the last position that I wanted to take, that I saw myself retiring out of that position and not moving. And I was very disappointed when-when things-when people that were in a position to do the right thing didn’t do the right thing.”

Jadwin Depo., 10/21/08, pg. 1087:9-17

See evidentiary objections: Irrelevant to proving disability under FEHA vis-à-vis ADA.

Disputed: Jadwin never made such a threat. [Decl. of David Jadwin in Opposition to Defendants’ Motion for Summary Judgment (“Jadwin Opp. Decl.”), para. 3].

Π’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

4

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

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

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Filed 12/01/2008

Page 5 of 115

9. Sandi Chester effectively refutes any argument that Jadwin’s letter to Peter Bryan of January 9, 2006 was notice to KMC that Jadwin needed medical leave or that, by implication, Jadwin was absolved of the responsibility to notify HR that he was taking a leave of absence. As Sandi Chester said “I mean, anybody can write a letter.”

Chester Depo., 8/28/08, pgs. 135:12137: 6

10. Certification of Health Care Provider dated 1/13/06 for Jadwin. Includes the duration of the medical condition (2-3 months) and the expected date to return to work (3/16/06). It gives the date the medical condition commenced as 12/16/05.

DFJ00726

Undisputed that the document says what it says.

11. Jadwin did not communicate with Human Resources (hereinafter referred to as HR) at all, HR discovered that Jadwin -----had unilaterally assigned himself to 1 to 2 workdays per week but, per policy, an employee must use vacation, sick time, or leave of absence when not working full-time. It was HR that brought Jadwin into compliance with County policy by putting him on leave of absence.

Chester Depo., 8/28/08, pgs. 75:1976:10

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

Pg. 136:17-18

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). See evidentiary objections: Irrelevant to prove Plaintiff failed to give reasonable notice on 3/16/06 of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan on 4/28/06. Chester later admitted that Plaintiff’s email to Bryan of 3/16/06 constituted reasonable notice of his need for extension of medical leave. [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

Disputed: Plaintiff obtained permission in January 2006 from Bryan before commencing his medical leave. Bryan promised to contact HR and send Plaintiff the necessary leave forms but was late in doing so. Plaintiff submitted the form and medical certification promptly after being provided the forms and appropriate instructions from HR. [Jadwin Opp. Decl., para. 4]. Defendant County waived any such policy by allowing Dr. Naderi and Dr. Dutt to take leave for known FMLA/CFRA qualifying purposes without requiring them to contact HR, submit a request for family leave supported by a doctor's certificate; HR did not designate either of their leaves as family leave. [Lee Opp. Decl., Exh. 56 (PMK Dutt Depo at 232:6-13, 237:1-9); Exh. 41 (Naderi Depo. at 38:6-39:25, 43:2-10, 51:21-25); Exh. 29 (McBride Depo. at 98:15-22) (Naderi's son's accident was common knowledge at KMC)]. The fact that Defendants apply it strictly against Plaintiff is further evidence of retaliatory animus.

26 27 28 Π’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

5

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

1 2 3

Document 282

12. KMC had to designate Jadwin’s medical leave retroactively because Jadwin was late in giving appropriate requests.

Bryan Depo., 8/14/08, pgs. 195:9196: 14

13. Jadwin’s submission of his healthcare provider’s certification was not timely and was only provided upon prompting from HR.

Chester Depo., 8/28/08, pgs. 113:23114: 12

14. Certification of Health Care Provider, dated 4/26/06, stating that Jadwin’s medical condition goes back to 10/30/03. The Certification states that Jadwin requires “part-time or less to avoid worsening of his serious medical condition.”

DFJ0l150

15. Jadwin’s Request for Leave of Absence (hereinafter referred to as LOA), dated 3/2/06, notes that the LOA started on 12/16/05.

DFJ00746

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

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See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: Plaintiff’s timecards show that he took vacation from 12/16/05 to 1/2/06. Plaintiff obtained permission in January 2006 from Bryan before commencing his medical leave. Bryan promised to contact HR and send Plaintiff the necessary leave forms but was late in doing so. Plaintiff submitted the form and medical certification promptly after being provided the forms and appropriate instructions from HR. On 1/13/06, Plaintiff’s therapist, Dr. Riskin, certified that Plaintiff's need for reduced work schedule began on 12/16/05. Accordingly, KMC retroactively deducted Jadwin's vacation days from his FMLA/CFRA balance even though he worked full time for approximately three weeks after returning from vacation. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ01155); [Declaration of Paul Riskin (“Riskin Decl.”), Exh. 1 (Certification of 1/13/06 at DFJ1810)]. [Jadwin Opp. Decl., para. 4]. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: Plaintiff obtained permission in January 2006 from Bryan before commencing his medical leave. Bryan promised to contact HR and send Plaintiff the necessary leave forms but was late in doing so. Plaintiff submitted the form and medical certification promptly after being provided the forms and appropriate instructions from HR. [Jadwin Opp. Decl., para.4]. Disputed in that the form also states that Plaintiff can work “part-time, now”, and is able to “work for 1-2 days per week”; and Defendant did not engage in interactive consultation to clarify any confusion over the Riskin’s certification.

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Otherwise undisputed that the document says what it says.

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Document 282

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

17. E-mails dated 3/16/06. One to Peter Bryan from Jadwin telling him that he (Jadwin) will take Bryan’s suggestion to take 2-3 months additional leave; the other to Dr. Kercher from Jadwin telling him that he (Jadwin) is having surgery and will need 2-3 months of additional leave for the surgery and requesting apologies from Dr. Ragland (Presidentelect), Dr. Abraham and Dr. Taylor and an investigation into Dr. Roy.

DFJ00752 -753

Undisputed.

18. Notice from Human Resources to Jadwin, dated 4/20/06, that his leave of absence expired on 3/15/06.

DFJ00796

See evidentiary objections: Irrelevant to prove Plaintiff failed to give reasonable notice on 3/16/06 of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan on 4/28/06. This is also See evidentiary objections: Irrelevant to excusing Defendants’ liability under any other of Plaintiff’s counts. Chester admitted in Depo. that Plaintiff’s email to Bryan of 3/16/06 constituted reasonable notice of his need for extension of medical leave. [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

19 20 21

Otherwise, undisputed that the document says what it says.

22

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16. KMC’s responsive DFJ00747 document to the LOA -748 request, dated 3/2/06, indicating that the leave ends on 3/15/06 and stating “ .. have the right to be reinstated to the same or an equivalent job with the same pay, benefits and terms and conditions of employment.”

18

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19. Jadwin’s request for Leave of Absence Extension, dated 4/26/06, has a starting date of 3/15/06 and an ending date of 9/16/06.

DFJ01158

See evidentiary objections: Irrelevant to prove Plaintiff failed to give reasonable notice on 3/16/06 of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan on 4/28/06. Chester admitted in Depo. that Plaintiff’s email to Bryan of 3/16/06 constituted reasonable notice of his need for extension of medical leave. [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22] Otherwise, undisputed that the document says what it says.

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Document 282

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Page 8 of 115

20. Memo from Bryan to Jadwin, dated 4/28/06, notifying him that his leave would be up on 6/16/06 and he either returns fulltime or resigns. Also, it notes that Jadwin was provided a medical leave history, along with the calculations and policies about his medical leave.

DFJ0l121

Undisputed that the document says what it says.

21. Bryan noted that he gave the option to Jadwin whether to go on full-time leave, although full-time leave was preferable to Bryan. Bryan asserts that it was Jadwin’s decision to go on fulltime leave and that Jadwin never communicated with Bryan any contrary intent.

Bryan Depo., 8/14/08, pgs. 250: 15- 251:6, Exhibit 303

See evidentiary objections. Disputed: Plaintiff has testified multiple times that, after he requested an extension of his medically-required parttime medical leave in April 2006 [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)], Defendant Bryan refused and forced him onto full-time medical leave on April 28, 2006, so as to exhaust his medical leave as soon as possible. [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. Plaintiff’s testimony is unrefuted: Defendant Bryan admitted in Depo. that it was his idea that day to have Plaintiff convert his part-time leave to full-time, based upon a perception that Plaintiff’s part-time leave was creating “issues” within the Pathology department (not a concern that part-time work might worsen Plaintiff’s condition). [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. It should be noted that the “issues” within the Pathology department to which Bryan referred are clearly pretext. Less than 2 weeks before Bryan interfered with Plaintiff’s leave, he wrote to him saying: “Yes, the Department of Pathology continues to function well, as it has for many years, and, yes, you have made many positive changes to the department” [Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified that, as of April 28, 2006, “actual functioning of the department of [pathology] actually was fairly good”. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).].

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22. Memo from Bryan to Jadwin dated 4/28/06, summarizing a meeting held with Bryan, Karen Barnes, Steve O’Connor, and Jadwin. The meeting was held to “insure that [Jadwin] had all information available concerning his status and what was possible and not possible according to County policies for leaves of absence.” It was not a disciplinary meeting.

Document 282

Bryan Depo., 8114/08, pgs. 240:9244: 2, Exhibit 303 pg 243:22-25 pg.244:12

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See evidentiary Objections Disputed: Plaintiff has testified multiple times that, after he requested an extension of his medically-required parttime medical leave in April 2006 [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)], Defendant Bryan refused and forced him onto full-time medical leave on April 28, 2006, so as to exhaust his medical leave as soon as possible. [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. Plaintiff’s testimony is unrefuted: Defendant Bryan admitted in Depo. that it was his idea that day to have Plaintiff convert his part-time leave to full-time, based upon a perception that Plaintiff’s part-time leave was creating “issues” within the Pathology department (not a concern that part-time work might worsen Plaintiff’s condition). [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. Disputed that it was not a disciplinary meeting. [Lee Opp. Decl., Exh. 57 (O’Connor Depo. at 68:4-11). Meetings that Defendant Bryan ordered him to attend were typically those involving employee discipline. [Id. at 73:23-74:11]. O’Connor also testified that his role at the meeting did not include offering any input, and that he did not do so.

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23. A letter to Bryan from Jadwin, dated May 31, 2006, where Jadwin requests more time to make the decision by June 16th of whether to return full-time or resign. Bryan did not have the authority to make an exception to County policy by extending leave beyond the maximum period granted for leave. Jadwin wasn’t being asked to return fulltime on June 16th, he just had to give his decision to return full-time by June 16th. He did not do that.

Document 282

Bryan Depo., 8/14/08, pgs. 248:16249 : 9 Exhibit 311

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24. Letter from Peter Bryan DFJ01141 to Jadwin, dated 6/14/06, granting him Personal Necessity Leave of 90 days, pursuant to Rule 1202.2, but only for his employment with KMC, not for his position as pathology department chair.

Filed 12/01/2008

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See evidentiary objections. Undisputed that Plaintiff was requesting more time to make decision by June 16th whether to return full-time or resign. Disputed that Plaintiff “did not do that”. It is true Bryan had told Plaintiff to make a decision to return full-time by 6/16/06. Plaintiff’s request for more time to decide was sent on 5/31/06. All Bryan had to do was say yes or no. He did neither. Instead, on 6/14/06, 2 days before the deadline, Bryan pre-empted Plaintiff by informing him he was going to “enact the provisions [of REMOVAL], and rescind your appointment as chairman…This decision is effective 6/17/07. [Lee Decl. (Bryan memo to Jadwin of 6/14/06 at DFJ01181]. Disputed: Bryan did not lack authority to extend leave beyond June 16, 2006. Kern County Civil Service Commission rule 1201.20 provided that Plaintiff was permitted to have medical or recuperative leave of up to 6 months CUMULATIVELY. [Lee Decl., Exh. 18 (CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 is exactly 6 calendar months after Plaintiff’s leave allegedly began (December 16, 2005). Since Plaintiff had been on part-time leave from 12/16/05 to 4/28/06, he had not used up 6 months of cumulative leave by 6/16/06. On June 29, 2006, Plaintiff’s counsel informed County Counsel Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 6/29/06 at sec. III)]. Defendant County responded by demoting Plaintiff on July 10, 2006 anyway. Disputed that Plaintiff ever asked for 90-days Personal Necessity Leave. He never did; Bryan forced him onto personal leave. Plaintiff’s leave extension request of March 16, 2006 asked for extension of Plaintiff’s protected medical leave, not personal leave. [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157); Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752); Lee Supp. Decl. (Doc. 267), Exh. 15 (Chester Depo at 120:1-16)]. Meanwhile, Defendants’ own Separate Statement (Doc. 259) admits that Plaintiff’s letter to Bryan of May 31, 2006 was requesting more time to decide whether he would be returning full-time or resigning. It was not requesting more leave past September 16, 2006. [Defendants’ Separate Statement (Doc. 259), DMF 23]. The notion that Bryan “granted” Plaintiff personal leave is pretext.

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25. Bryan artfully explained why the Chair of the Department of Pathology needs to be present full-time. “It’s not just the task orientation of handling a duty. It’s being present within the organization to influence the organization’s policies and practices. Organizations tend to drift without the constancy of leadership, because that is part of what a leader does is monitor the performance to ensure things stay on track, and without that constant dialogue present, you can find yourself getting off track. In the medical arena when patient care is involved, you don’t allow it to get to the point where you don’t have the leadership necessary. So that’s inferred in it being a full-time position.”

Document 282

Bryan Depo., 8/14/08, pg. 216:3·22.

Filed 12/01/2008

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See evidentiary objections. Disputed: This is pretext. On 4/17/06, just prior to placing Plaintiff on Forced FT Leave, Bryan admitted to Plaintiff: “Yes, the Department of Pathology continues to function well, as it has for many years, and, yes, you have made many positive changes to the department.” [Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified that, as of April 28, 2006, “actual functioning of the department of [pathology] actually was fairly good”. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).]. But in Bryan’s letter to the DHS of 7/25/06, he contradicts himself when explaining to the DHS that Plaintiff had been demoted as follows: “Quality of care issues was not the basis for making this decision. To the contrary, Dr. Jadwin has been on an extended leave of absence from the hospital and there was a need to provide consistent administrative leadership within the department. In compliance with section 1265 and CLIA, Philip Lee Dutt, M.D., has been selected as the interim director of the laboratory and will serve in that capacity until a permanent replacement is appointed.” [Lee Decl., Exh. 19 (Bryan letter to DHS of 7/25/06 at Bates 0001619)(emphasis added)]. Bryan made no mention in his letter of a failure to “influence” policies and practices outside of the pathology department or across KMC as an organization. Moreover, this responsibility to “influence” policies and procedures outside of the Pathology department, across KMC as an organization, is conspicuously absent from Plaintiff’s job description. In fact, the job description’s only reference to “policies and procedures” is as follows: “Oversees the development, implementation and maintenance of department policies and procedures for the clinical laboratory and pathology department, including surgical pathology, cytopathology and autopsy pathology.” [Lee Decl., Exh. 2 (Second Employment Contract of 11/12/2002 at Section 2.a. of Exhibit A on Bates DFJ00171)]. Bryan's "explanation" is a pretext for discrimination in that Dr. Tai Yoo, Chair of Psychiatry, is a chair even though he is not present full-time. Yoo testified that he typically spent 25 to 30 hours per week at KMC [Lee Opp. Decl., Exh. 46 (Yoo Depo. at 20:4-15)], dividing his time 50/50 between KMC and Kern Mental Health [Id. at 9:11-16; 20:4-11]. He has been employed by Defendant County as a part-time chair since 8/1/01. [Id. at 9:2510:9]. He remains a chair and has not been removed.

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a) Responsibilities and duties of the pathology dept. chair are set out in the KMC Medical Staff Bylaws, sections 6. through 6.4-3.

DFJ00046

26. Mortgage verification of employment for Jadwin, dated 6/22/06, noting that the probability of continued employment for Jadwin was good and he was okay to return to work when well.

DFJ01343

27. Letter from Dr. Harris (writing on behalf of Bryan) to Jadwin, dated 6/26/06, stating that he (Jadwin) has been seen in and around KMC and that while he (Jadwin) is on leave, he is not to enter the hospital except for seeking medical attention. He is also not to contact any employee or faculty member of KMC while on leave.

0001424

28. In his letter of June 14, 2006, Bryan notifies Jadwin that Jadwin will be removed as chair and tells Jadwin to call him if he has questions. Bryan states that put the burden of challenging the action or asking for reconsideration on Jadwin who never called him about the letter.

Bryan Depo., 8/14/08, pg. 257:915

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See evidentiary objections. Disputed: Sections 6. through 6.4-3 of the Bylaws do NOT contain any such provisions. See evidentiary objections: Irrelevant and immaterial to excusing Defendants' liability under any of Plaintiff's counts. Bryan had solicited Plaintiff’s resignation earlier on 4/28/06. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ001152)]. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: Bryan testified in deposition that this letter was drafted by him (not Harris). [Lee Opp. Decl., Exh. 2 (Bryan Depo., 261:7-262:19)].

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: Bryan is not an impartial adjudicator. Offering Plaintiff to contact him was not adequate due process. [Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16 (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)].

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29. According to Exhibit 303, Jadwin’s leave and all allowances by the County expired by June 16th. After that date, Bryan had no authority to extend Jadwin’s employment relationship.

Document 282

Bryan Depo., 8/14/08, pg. 244:616

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See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that the document says what it says. Disputed: Bryan did not lack authority to extend leave or employment beyond June 16, 2006. Kern County Civil Service Commission rule 1201.20 provided that Plaintiff was permitted to have medical or recuperative leave of up to 6 months CUMULATIVELY. [Lee Decl., Exh. 18 (CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 is exactly 6 calendar months after Plaintiff’s leave allegedly began (December 16, 2005). Since Plaintiff had been on part-time leave from 12/16/05 to 4/28/06, he had not used up 6 months of cumulative leave by 6/16/06. On June 29, 2006, Plaintiff’s counsel informed County Counsel Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 6/29/06 at sec. III)]. Defendant County responded by demoting Plaintiff on July 10, 2006 anyway.

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30. By June 2006, Jadwin had fully exhausted his rights and the institutional obligation to grant him medical leave.

Document 282

Bryan Depo., 8/14/08, pgs. 280:21281:4

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See evidentiary objections. Undisputed that the document says what it says. Disputed: Bryan testified that, towards the end of his leave, Plaintiff was requesting extension of his leave even though he had fully his medical leave right under law and County policy. This is pretext.

Second, Plaintiff was not asking for an extension of his leave. As Defendants’ own Separate Statement (Doc. 259) admits Plaintiff’s letter to Bryan of May 31, 2006 was requesting more time to decide whether he would be returning full-time or resigning, not more leave past September 16, 2006. [Defendants’ Separate Statement (Doc. 259), DMF 23]. Bryan’s testimony is pretext manufactured after the fact to justify the Demotion.

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First, Bryan did not lack authority to extend leave or employment beyond June 16, 2006. Kern County Civil Service Commission rule 1201.20 provided that Plaintiff was permitted to have medical or recuperative leave of up to 6 months CUMULATIVELY. [Lee Decl., Exh. 18 (CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 is exactly 6 calendar months after Plaintiff’s leave allegedly began (December 16, 2005). Since Plaintiff had been on part-time leave from 12/16/05 to 4/28/06, he had not used up 6 months of cumulative leave by 6/16/06. On June 29, 2006, Plaintiff’s counsel informed County Counsel Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 6/29/06 at sec. III)]. Defendant County responded by demoting Plaintiff on July 10, 2006 anyway.

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31. Adherence to the Medical Staff Bylaws afforded Jadwin the due process that he was entitled to.

Bryan Depo., 8/14/08, pg. 258:716

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: The Bylaws’ failure to provide for due process in connection with the Demotion is a violation of due process. Because the Bylaws were ratified by the Kern Board of Superviors, it establishes the 42 USC § 1983 liability of Defendant County under Monell. Disputed: JCC minutes regarding the contemplated demotion of the chair of the OB-GYN department stated: “The problem is we have tied a portion of the chair’s compensation to that position, that is a property right. Dr. Perez is entitled to due process hearing for this reason.” [Lee Opp. Decl., Exh. 18 (JCC Meeting Minutes of 9/10/07 at Agenda Item 6 on Bates 0009221)]. See evidentiary objections.

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Document 282

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32. Tort Claims Act Complaint, dated 7/3/06, Jadwin admits that he had used up his CFRA leave by June 14th, 2006. Page 1 of the Attachment (page 3 of the entire complaint), Section A, paragraph 1, last sentence reads “As of June 14, 2006, Complainant had taken 12 weeks of CFRA sick leave and approximately 3-4 weeks of County sick leave based on doctor’s certifications which he submitted.”

Exhibit 2 to Second Amended Complaint

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

33. Memorandum to the Joint Conference Committee (JCC) from Bryan, dated 7/10106, recommending that the Committee approve the demotion of Jadwin from chair of the pathology department to staff pathologist. “This recommendation to rescind Dr. Jadwin’s appointment as Chairman, Department of Pathology, is based solely on his continued nonavailability to provide the leadership necessary for a contributing member of the medical staff leadership group. KMC must have its key personnel available, and Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chairman.” Also, “Dr. Jadwin has made no attempt to contact me concerning my decision to relieve him of his chairman duties nor has he indicated any desire to negotiate a new contract.” JCC meeting minutes confirm that the committee took Bryan’s advice and they did it for the reason that he gave in his memorandum.

00014761565 000007375

See evidentiary objections. Undisputed that the JCC “took [Bryan’s] advice”. Disputed: Evidence establishes that the JCC voted to demote Plaintiff not only for the reasons that he gave in his memorandum, but also for whistleblower retaliation and disability discrimination, as well as oppositional/participatory retaliation for threatening to file lawsuit.

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34. Ray Watson (hereinafter referred to as Watson) testified that he only remembers a discussion on removing Jadwin from the department chair position; he was quite clear (and he was asked three times) that he did not remember any discussion about Jadwin’s “termination.” He affirmatively stated that he knew of no discussions about Jadwin resigning or being denied privileges.

Document 282

Watson Depo., 8125/08, pgs. 13:1714:14

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See evidentiary objections. Disputed: Watson testified at his deposition that he clearly recalled Defendant County had decided not to renew Plaintiff’s contract. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 30:10-13).].Watson was asked twice if he recalled clearly whether it was to punish Plaintiff for bring suit and each time he answered yes: Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwin’s physical absence being a reason for his nonrenewal of his contract? A. Well, it could be that. It could be the fact that I think by then he was -- probably was suing us. So why would you want to establish a contractual relationship with somebody who’s suing you. Q. Okay. Well, he was also suing you at the time of his removal or actually at the time of his --no, he wasn’t. He wasn’t. Okay. But I mean, you say why would you establish a contractual relationship with someone who’s suing you, right? A. Right. Q. Was that -- does that mean -- are you just speculating now, just guessing, or was that a consideration for his nonrenewal? A. Well, I remember it being discussed. […] Q. Okay. But you recall it being discussed at the JCC meetings? A. Yes. [Id. at 110:12-111:5; 111:15-24]. Watson then re-affirmed a third time – volunteering it on his own initiative – that oppositional retaliation was an additional motivating factor for the Nonrenewal: Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was that Dr. Jadwin wasn’t available for work; is that correct or -A. My understanding was that he had -- he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract. [Id. at 113:15-114:4).]. Watson failure to recall discussion of Plaintiff’s termination or denial of his medical privileges proves nothing about the Nonrenewal and whether a discussion about it occurred. A discussion of one doesn’t necessitate or preclude a discussion of the others. Moreover, the testimony Defendants cite to appeared over 100 pages and 2 hours earlier in the deposition transcript than the Nonrenewal discussion and arose in response to a completely unrelated line of questioning. [Id. at 12:10-14; 13:17-14:2)].

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35. Watson testified that he became aware that Jadwin’s contract was not renewed although he could not give a timeline as to when things happened. He also testified strongly that he does not recall a vote taken on the nonrenewal “although [he] imagine[s] it was,”

Watson Depo., 8/25/08, pgs. 28:630:23

36. Watson testified that the fact that Jadwin was suing KMC was brought up in discussions of whether to renew Jadwin’s contract although he would not say it was a consideration, only that it was discussed. In addition, it became obvious after a few questions that Watson was confused about the sequence of events which can lead to the inference that he does not recall anything specifically or correctly.

Watson Depo., 8/25/08, Disputed: For sake of economy, see Item 34 supra, which pgs. is incorporated in its entirety herein. 110:12112 : 13 Disputed: On the one hand, Defendants argue that Watson’s testimony is “confused” and unreliable. Yet, In their own motion, Defendants cite liberally to Watson’s supposedly “unreliable” testimony when it suits them. [Defendants’ Separate Statement (Doc. 259) at DMF 34 on 9:16-22; at DMF 35 on 9:23-27; at DMF 145 on 34:45; DFM 36 on 34:6-9]. Defendants’ argument is a bad faith attempt to controvert Watson’s testimony when it is damaging, but to otherwise rely on it when it suits them.

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Document 282

See evidentiary objections. Disputed: For sake of economy, see Item 34 supra, which is incorporated in its entirety herein. Disputed: The fact that Watson couldn’t recall a formal JCC vote to not renew Plaintiff’s contract proves nothing about whether or not the JCC decided to not renew Plaintiff’s contract. JCC decision do not all require a formal JCC vote. In any event, Watson confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal. See evidentiary objections.

Watson was scrupulous about stating in his deposition when he did or did not have clear or certain recall. [Lee Opp. Decl., Exh. 10 (Watson depo. at 13:17-14:19, at 38:9-40:5)]. Watson confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal for the reasons he stated. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 110:12-111:5; 111:15-24; at 113:15-114:4)].

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a) Kern County Board of Supervisors did not discuss the non-renewal of Jadwin’s employment agreement or made any decisions regarding the non-renewal of the employment agreement. The subject never came before the Board of Supervisors.

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

Document 282

Decl. of Michael Rubio, 11/10/08, ¶2; Decl. of Raymond Watson, 11/10/08, ¶¶3, 4 and 5; Decl. of Mike Maggard, 11/10/08, ¶2; Decl. of Jon McQuisto n, 11/10/08, ¶2; Decl. of Don Maben, 11/10/08, ¶2

Filed 12/01/2008

Page 18 of 115

See evidentiary objections. Disputed: Defendants’ declarations submitted by members of the Kern County Board of Supervisors asserting that the Board never discussed or made any decision regarding nonrenewal or expiration of Plaintiff’s contract proves nothing about whether such a decision or discussion occurred at the JCC level. The absence of a decision by the Board of Supervisors in no way precludes a decision being made by the JCC. Again, Watson confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 30:10-13; 110:12-111:5; 111:15-24; 113:15-114:4)]. Disputed: a party cannot create an issue of fact by a declaration contradicting his or her own deposition or other sworn testimony. See Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2. The same rule applies to postdeposition affidavits that contradict the affiant’s deposition testimony. Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908; Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169.

37. Letter from Karen Barnes DFJ01359 (hereinafter referred to as -1361 Barnes) to Plaintiffs attorney Eugene Lee, dated 7118/06, in which she mentions (pg. 2) that Jadwin was removed as pathology department chair on 7/10/06 at a regularly scheduled meeting of the Joint Conference Committee, pursuant to Bylaws article IX, section 9.7-4 “removal of a department chair may occur with or without cause .. “

See evidentiary objections.

38. Plaintiffs’ attorney Eugene Lee agrees that Jadwin was not removed as chair during his medical leave.

Bryan Depo., 8/14/08, pg. 222:813

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

39. Letter to Dr. Harris from Jadwin, dated 9111/06, stating that he (Jadwin) will be returning to work on 9/18/06 and enclosed was a doctor’s certification that he was able to return to work full-time.

DFJ01388 -1389

Undisputed that the document says what it says.

Disputed: The Bylaws’ failure to provide for due process in connection with the Demotion is a violation of due process. Because the Bylaws were ratified by the Kern Board of Superviors, it establishes the 42 USC § 1983 liability of Defendant County under Monell.

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Document 282

DFJ01398

Undisputed.

41. Letter from David Culberson to Jadwin, dated 12/7/06, putting Jadwin on administrative leave with pay and confining him to his home during business hours, pursuant to Kern County Policy and Administrative Procedures Manual section 124.3.

DFJ01482

Undisputed that the document says what it says.

a) Kern County Policy and Administrative Procedures Manual, pg. 1:22, Section titled “Administrative Leave with Pay.” “During the administrative leave, the employee shall be ordered to remain at home and available by telephone .. “.

0016941

See evidentiary objections.

42. Letter from Mark Wasser to Eugene Lee, dated 4/30/07, allowing Jadwin to pursue his own activities during the work week and retaining him, at his usual salary, for consulting.

DFJ01701

Undisputed that the document says what it says.

Disputed: Defendant County was not “retaining” Plaintiff for consulting. Rather, the intent was to “run out’ the term of his existing contract, which was due to expire on October 4, 2007. [Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 43 at 53:3-9); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 44, 28:17-22); Lee Supp. Decl. (Doc. 267), Exh. 6 (Wasser Email to Lee of 5/1/07 at DFJ01705)].

21 22

25 26 27 28

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that the document says what it says.

20

24

Page 19 of 115

40. Letter from David Culberson to Jadwin, dated 9/20/06, explaining the reasons for reduction in pay.

19

23

Filed 12/01/2008

See evidentiary objections. 43. Letter to Mark Wasser from Eugene Lee, dated 5/1/07, noting that on 4/28/07 and in several following e-mails he was notified that KMC wanted to terminate Jadwin’s contract and would not renew it on 10/4/07.

DFJ01703 -1704

Undisputed that the document says what it says.

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44. Exhibit 644 is an e-mail with an amendment attached to it. The amendment is a contract amendment which Jadwin had to sign before returning to work. Exhibit 581 is also the same contract amendment although Exhibit 581 is signed. There are differences between Exhibit 644 and 581, in subparagraphs “h” and “i”. Jadwin confirmed that he had discussions with his attorney about the amendment; Jadwin does not know if his attorney negotiated any of the terms in it. Jadwin does not know if his attorney made proposals to KMC with suggested changes in the language of the amendment. Jadwin was aware of the changes at the time they occurred but he does not recall how the changes came about. One change that Jadwin recalls talking about is the cut in his salary which he didn’t agree with.

Document 282

Jadwin Depo., 3/12/08, pgs. 969:1974:2 (Exhibits 644 and 581)

Filed 12/01/2008

Page 20 of 115

See evidentiary objections. Undisputed that the amendment is a contract amendment which Jadwin had to sign before returning to work. Disputed: Plaintiff’s confirmation of discussions with his attorney about the amendment proves nothing, much less that Plaintiff negotiated the amendment with Defendants. In fact, later, Plaintiff confirmed he did not know whether his attorney had engaged in negotiations or made proposals regarding the amendment. Disputed: Defendants cite DMF 44 in support of an affirmative defense that the Paycut Amendment was a novation of Plaintiff’s employment contract, thus extinguishing all prior claims. This is an unpleaded affirmative defense which Defendants failed to plead as recently as October 27, 2008, when they filed their Answer to the Second Amended Complaint. It should be stricken.

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45. The last two pages of Exhibit 581 is Exhibit A which is a job description. Jadwin confirms that he read it at the time of signing the amendment. Jadwin looked at the tasks listed and does not believe that any of those tasks require accommodation. Jadwin does not recall asking anyone with the County for an accommodation of any of the tasks listed in Exhibit A.

Document 282

Jadwin Depo., 3/12/08, 974:3~97 6:l2

Filed 12/01/2008

Page 21 of 115

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: Plaintiff had requested reasonable accommodation of his disability by asking to extend his part-time medical leave. Bryan refused on 4/28/06, forcing Plaintiff onto Forced FT Leave. [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)] [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).]

8

Plaintiff’s testimony is unrefuted: Defendant Bryan admitted in Depo. that it was his idea that day to have Plaintiff convert his part-time leave to full-time, based upon a perception that Plaintiff’s part-time leave was creating “issues” within the Pathology department (not a concern that part-time work might worsen Plaintiff’s condition). [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).].

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

46. Jadwin testified that he wanted his employment contract renewed, but when presented with the fact that his employment contract in place at the time of nonrenewal contained his reduced salary, he denied wanting to renew that contract.

Jadwin Depo., 10/21/08, pg. 1011: 161016: 19

See evidentiary objections. Completely misstates Plaintiff’s testimony.

47. Jadwin said that the contract he wanted renewed was his Department Chair contract.

Jadwin Depo., 10/21/08, pgs. 1032:1610 33: 3; pg. 1043:1220

See evidentiary objections. Completely misstates testimony. Disputed: What Plaintiff wanted is irrelevant to establishing what he was willing to agree to in terms of contract renewal. Plaintiff testified on the record that he expected his contract to be renewed on 10/4/07 and that he would have continued prosecuting his lawsuit, had it been renewed. [Lee Opp. Decl., Exh. 6 (Jadwin Depo. at 1096:9-14; 1096:22-1097:3)].

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Document 282

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Page 22 of 115

JADWIN’S ALLEGATIONS OF REGULATORY VIOLATIONS 48. Approved Cancer Program Performance Report for KMC, dated 7/14/04, with a rating of “I “meaning KMC’s Cancer program-including number of meetings-is approved for three years with commendation.

0000623630

49. Exchange of e-mails between Toni Smith and Jadwin, dated 6/15/05, about the PCC issues. In 0000423, Jadwin states that a PCC must not be signed until the time of the infusion, or KMC is not meeting American Association of Blood Banks’ (hereinafter referred to as AABB) accreditation standards.

0000421424

Disputed: See evidentiary objections: Irrelevantas this is allegedly a report issued as of 7/14/04, more than a year before the October Conference of 10/12/05 and the Credential Threat and before Plaintiff reported concerns that the monthly oncology conference was not compliant with accreditation requirements. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that the document says what it says.

50. Typed notes, dated 0000575 1/10/06, of interviews done to rebut Jadwin’s claim that the meeting frequency standard set by the American College of Surgeons (hereinafter referred to as ACS) was not being met at KMC. 51. In meeting on 2/22/06, Jadwin alleges that KMC is not meeting the ACS standard for frequency of staff meetings; was rebutted during the meeting that KMC is meeting standard based on 2 surveys and paperwork.

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). See evidentiary objections.

9 10

Filed 12/01/2008

0000578

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

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Document 282

Filed 12/01/2008

52. In an e-mail to Peter Bryan dated 4/10/06, Jadwin brings up noncompliance with state regulations, Joint Commission for the Accreditation of Hospital Organizations (hereinafter referred to as JCAHO), and AABB on the issues of the PCCs.

DFJ00784

Undisputed.

53. Notes of meeting with Peter Bryan, Karen Barnes and Jadwin on 4/13/06. There is no problem with the PCCs because 5 charts were reviewed (and approved) by JCAHO.

DFJ00788

See evidentiary objections:

54. E-mail to Peter Bryan from Jadwin, dated 4/17/06, claiming that the JCAHO review was too small of a sample so KMC was not in compliance on their handling of the PCCs and there was a need for action.

DFJ00793

Undisputed.

55. Gilbert Martinez, the Laboratory manager, recalls Jadwin telling him before Thanksgiving in 2006 to prepare the laboratory for possible inspections (so sometime before 11/22/06). He does not recall if Jadwin told him how Jadwin might know about it. He remembers inspectors coming in from the California Dept. of Health Services (hereinafter referred to as DHS) and receiving written inquiries from the CAP. These inspections occurred several months after Jadwin had mentioned it. Jadwin did not “confide” in him or tell him that the inspections were happening because of whistleblowing by Jadwin.

Martinez Depo., 4/16/08, pgs. 111: 12-118: 22

See evidentiary objections.

Page 23 of 115

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

Disputed: Dr. Philip Dutt, Acting Chair of Pathology, testified as PMK for the County on 8/29/08 that by the Monday following Thanksgiving 2006, he had had a conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after that weekend.” [Lee Opp. Decl., Exh. 12 (Dutt Depo. at 10:524)].

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a) CAP conducts routine inspections, unannounced, on a known periodic basis.

3

Document 282

Martinez Depo., 4/16/08, pgs. 118:23120:19

Filed 12/01/2008

Page 24 of 115

See evidentiary objections.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

56. Jadwin first reported concerns to JCAHO, CAP, and DHS in November 28, 2006 (more than five years after noticing alleged violations).

Disputed only as to the statement “more than five years after noticing alleged violations”. There is no support for this statement.

a) Actual complaint filed with JCAHO by Jadwin.

DFJ02540 -2541

Undisputed.

b) E-mail from JCAHO to Jadwin, dated 11/29/06, acknowledging receipt of complaint about KMC.

DFJ01454

Undisputed.

c) Letter from DHS to Jadwin, dated 12/1/06, acknowledging receipt of complaint.

DFJ01459

Undisputed.

57. E-mail to JCAHO from Jadwin, dated 12/8/06, wanting to talk with the JCAHO investigator and requesting quickness on the investigation because KMC might be covering up noncompliance evidence. He brings up the issue of skull flaps being stored onsite.

DFJ02538 -2539

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

58. Letter to KMC from Jadwin dated 12/13/06 notifying hospital administration that he has notified governmental and enforcement agencies of alleged violations.

00014551458

Misstates the evidence.

Undisputed.

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Document 282

59. Letter from Dr. Dutt to 0020278 Gerald Hoeltge of the CAP, dated 1/11/07, telling him that Jadwin had never informed him (Dutt) that some tissue handling and storage was occurring but the situation has been taken care of.

Filed 12/01/2008

Page 25 of 115

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that unlicensed tissue handling and storage was occurring.

60. Letter to Dr. Dutt from CAP, dated 3/22/07, informing him that the KMC laboratory continues to be in compliance with the CAP Standards for Laboratory Accreditation.

0020279

See evidentiary objections:

61. Dr. Dutt believed that Jadwin, after returning from leave, might be intentionally issuing wrong opinions to prove he was a whistleblower.

Dutt Depo., 8/20/08, pg. 296: 10- 19

See evidentiary objections:

Jadwin Depo., 1/9/08, pgs. 414:24418:12

See evidentiary objections.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

14 15 16 17 18 19 20 21 22 23 24 25 26 27

DEPRESSION DISABILITY, REASONABLE ACCOMMODATION, INTERACTIVE PROCESS 62. Jadwin described his disability as severe depression, manifested by a lack of ability to concentrate; loss of joy in his work; extreme anxiety and difficulty sleeping. Jadwin testified that he told Dr. Kolb, during a meeting he had with him in 2003, that he was depressed. Jadwin thought this meeting was a one-on-one weekly meeting that each department chair had with Dr. Kolb. Jadwin said that Dr. Kolb must have noticed that he was depressed because he would often ask him if he was alright.

Undisputed.

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Document 282

Filed 12/01/2008

63. Jadwin told Dr. Kolb that he suffered from depression when he notified him of the weekly half-day medical leave day off to see his therapist.

Jadwin Depo., 1/9108, pgs. 491:1493:17

See evidentiary objections.

64. Jadwin asked Dr. Kolb for accommodations for his disability by requesting time off for his therapist visits. Dr. Kolb granted that accommodation.

Jadwin Depo., 1/9108, pgs. 506: 16-507: 1

See evidentiary objections.

65. Jadwin had an episode of depression in the 1990s before coming to work at KMC. Jadwin affirmed his earlier testimony that his recent depression started in 2002 or 2003. Jadwin said that he was taking weekly half-day leaves starting in or about 2003 and he told Dr. Kolb it was because of his problems with radiology and others.

Jadwin Depo., 1/9/08, pgs. 452:4455:19 Pg. 455:813

See evidentiary objections.

66. Bryan does not recall Jadwin mentioning to him about depression, sleeplessness, etc. nor did Bryan notice behavior that he would call mental illness.

Bryan Depo., 8/14/08, pgs. 1ll: 12113: 2 and 128:16129:3

See evidentiary objections:

Page 26 of 115

Undisputed.

Undisputed.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: This is pretext. Bryan testified that he recalled receiving a letter from Plaintiff on 1/9/06 in which Plaintiff stated he was “depressed” and requested leave due to his depression. [Lee Supp. Decl., Exh. 10 (Bryan Depo at 105:7-106:2); Lee Decl., Exh. 9 (Jadwin letter to Bryan of 1/9/05 on Bates 0001140)]. Defendants also admit that Plaintiff had told Kolb he was depressed in 2003 and was accommodated in the form of part-time leave so he could obtain treatment. [Defendants’ Motion (Doc. 262) at 27:12-14 (“Plaintiff first complained of depression in 2003. He told Dr. Marvin Kolb, Chief Medical Officer at the time, that he suffered from an inability to concentrate, anxiety, and sleeplessness”); Defendants’ Separate Statement (Doc. 259) at DMF 6264]. On 1/17/06, Bryan also sent a letter to the Kern Board of Supervisors in which he stated he had become concerned about Plaintiff’s “emotional health”. [Lee Decl., Exh. 10 (Bryan memo to BOS of 1/17/06 at item 8 on Bates 0001567)].

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Filed 12/01/2008

67. Jadwin only discussed his disability with Dr. Kolb. When asked whether he had ever told Peter Bryan, Jadwin said that subsequently during one-on-one meetings with Bryan he had mentioned being depressed by lack of action on the concerns Jadwin was raising. When pressed on whether he had ever actually told Peter Bryan he was disabled, Jadwin said that in late 2005 or early 2006, he told Bryan that sometimes he was so depressed he couldn’t work at KMC anymore until it fixed some of his concerns. Jadwin said that he also told Dr. Yoo, head of psychiatry, that he was depressed from working at the hospital. Jadwin does not recall talking to Dr. Dutt about this issue. Jadwin could not recall any other people at KMC that he talked to about his disability. In fact, Jadwin would not use the term “disabled” just that he could not work there.

Jadwin Depo., 3/12/08, pgs. 976: 13983: 2 lines 977:5-8 and lines 977:24978:8 and lines 981: 17-982: 1 and lines 982: 1824 lines 978: 15979:1 lines 979:24980:8 lines 982:9-24

See evidentiary objections.

68. When asked what considerations there were in renewing a contract with KMC, Jadwin replied “All of the working environment situations. The patient quality issues, the administration, whatwhat type of administrative operation is there. The emphasis on quality, interest in quality. Interest in patient safety. The collaborative working environment. Are the other physicians going to be responsible in working for the betterment of patient care, or are they just going to be working for their own self-interest.”

Jadwin Depo., 10/21/08, pgs. 1055:131056: 15

See evidentiary objections:

Page 27 of 115

Disputed: Bryan testified that he recalled receiving a letter from Plaintiff on 1/9/06 in which Plaintiff stated he was “depressed” and requested leave due to his depression. [Lee Supp. Decl., Exh. 10 (Bryan Depo at 105:7-106:2); Lee Decl., Exh. 9 (Jadwin letter to Bryan of 1/9/05 on Bates 0001140)]. On 1/17/06, Bryan also sent a letter to the Kern Board of Supervisors in which he stated he had become concerned about Plaintiff’s “emotional health”. [Lee Decl., Exh. 10 (Bryan memo to BOS of 1/17/06 at item 8 on Bates 0001567)]. Defendants also admit that Plaintiff had told Kolb he was depressed in 2003 and was accommodated in the form of part-time leave so he could obtain treatment. [Defendants’ Motion (Doc. 262) at 27:12-14 (“Plaintiff first complained of depression in 2003. He told Dr. Marvin Kolb, Chief Medical Officer at the time, that he suffered from an inability to concentrate, anxiety, and sleeplessness”); Defendants’ Separate Statement (Doc. 259) at DMF 62-64]. Once Plaintiff informed Kolb, the CMO, of his disability, Defendant County was legally on notice of his disability.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

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Document 282

69. Dr. Ragland brings up the issue that a stack of FNA reports that Jadwin had given him had issue dates after the date of a double read, in each case, was done by UCLA. This raises the possibility that Jadwin waited to enter a diagnosis until the double read had come back from UCLA so that he could be in 100% agreement with UCLA.

Ragland Depo., 8/22/08, pgs. 171:5172:5 and 328:7329: 14

11 12 13 14 15 16

18 19 20 21 22 23 24 25

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JADWIN’S ERRORS Failure to Produce Timely or Correct Diagnoses

10

17

Filed 12/01/2008

70. Letter from Dr. Ang to 0000690Dr. Perez, Peter Bryan, Dr. 691, Kolb, and Dr. Munoz, dated 0000736 2/20/02, containing formal complaints of misconduct against Jadwin. Complaint #3 states that Jadwin failed to pass the quarterly proficiency tests on cervical pap smears so those tests are sent out. It states that this was an unnecessary cost and delay because the other three pathologists in the department could examine the pap smears because they have maintained their proficiency.

See evidentiary objections. Disputed: Ragland testified that he never even bothered to investigate his serious fraud concern by speaking with Plaintiff or UCLA or even Dutt directly. Had he done so, Plaintiff would have explained that the he issued diagnoses to clinicians PRIOR to sending reports out to UCLA for confirmatory review and that when he later received UCLA’s confirmatory reports, he entered them into the KMC computer system, which automatically updates the “Completed” report date to the date of the last modification. The “Completed” date does not equate to the date when Plaintiff issued his own diagnosis that was later confirmed by UCLA. This quickness to conclude Plaintiff had engaged in wrongdoing -- by fraudulently withholding diagnoses until UCLA issued their reports so that he could issue parallel diagnoses -- without informing Plaintiff of the suspicions or allowing him to explain himself was typical of how Ragland and KMC officers dealt with Plaintiff. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 171:22-172:7; 173:19-23; 174:7-175:24; 177:15176:12; 181:20-182:3); [Jadwin Opp. Decl., para. 5]. Even worse, Ragland spread rumors of Plaintiff’s suspected FNA fraud so that he was tried and convicted in the court of opinion. [(Lee Opp. Decl., Exh. 27 (Abraham Depo. at 73:15-74:16)]. Abraham admitted she still doesn’t trust Jadwin's competence. [Id. at 77:10-18]. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

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a) Document asserting Jadwin’s failing test scores and the fact that the Department of Pathology has not been sued for medical malpractice in 23 years.

4 5 6

8 9 10

12

15 16 17 18 19 20 21 22 23

Page 29 of 115

See evidentiary objections. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

Whether or not the Department of Pathology has not been sued for malpractice is irrelevant to prove that such malpractice did or did not occur.

11

14

0000737

Filed 12/01/2008

Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

7

13

Document 282

b) Jadwin’s actual (failing) test for cervical pap smears. This test is conducted by the College of American Pathologists (CAP). Of interest, on Case #3 Jadwin marked “unsatisfactory for evaluation” when the accurate diagnosis was “squamous cell carcinoma.”

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

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71. Report to Maureen Martin from Jadwin, dated 11/20/02, on the results of the evaluations of the pathologists (Jadwin and Lang) by resident physicians and staff physicians in surgery. On a three-point scale, where 2 means satisfactory and 3 means needs improvement, Jadwin scored low on timeliness (lower than Lang), IOC quality, completeness, and clarity of diagnosis. Jadwin blamed unhappiness of a Dr. Prunes for his low scores.

00010591072

72. Twenty-nine (29) medical reports from 2004 and 2005 with all of the following in common: 1) all are FNA reports; 2) all were processed in-house and then sent to outside labs for independent diagnosis; and 3) the turn-around time for the final diagnosis ranged from three weeks to five or six months.

00011631310

Filed 12/01/2008

Page 30 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Defendants neglect to mention that Plaintiff scored higher than Lang on 14 out of 16 of the criteria and also overall.

See evidentiary objections. Disputed: Ragland testified that he never even bothered to investigate his serious fraud concern by speaking with Plaintiff or UCLA or even Dutt directly. Had he done so, Plaintiff would have explained that the he issued diagnoses to clinicians PRIOR to sending reports out to UCLA for confirmatory review and that when he later received UCLA’s confirmatory reports, he entered them into the KMC computer system, which automatically updates the “Completed” report date to the date of the last modification. The “Completed” date does not equate to the date when Plaintiff issued his own diagnosis that was later confirmed by UCLA. This quickness to conclude Plaintiff had engaged in wrongdoing -- by fraudulently withholding diagnoses until UCLA issued their reports so that he could issue parallel diagnoses -- without informing him of the suspicions or allowing him to explain himself was typical of how Ragland and KMC officers dealt with Plaintiff. [Lee Opp. Decl., Exh. 9: 171:22-172:7; 173:1923; 174:7-175:24; 177:15-176:12; 181:20-182:3].

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

73. Letter from Dr. Roy to Jadwin, dated 4/15/05, complaining that samples from 2 cases still had not been analyzed and diagnosed and were over one week late.

Document 282

DFJ00363

Filed 12/01/2008

Page 31 of 115

See evidentiary objections. Defendant County retained outside pathology experts and sent out the pathology cases of which Roy complained and several others to such experts for evaluation of Plaintiff’s performance. The experts determined that Plaintiff’s performance had been exemplary. Dr. William Colburn was retained by Kern County to evaluate 21 of Plaintiff’s pathology reports. [Lee Opp. Decl., Exh. 22 (Colburn Agreement with Kern County of 5/15/06)]. Dr. Colburn issued an extensive report 3 months later that concluded that Plaintiff’s overall performance was found to “exceed the usual standard of care exercised by a practicing surgical pathologist in a busy tertiary community hospital”, that Plaintiff’s reports were “completed in what I believe to be a timely manner”, that his reports were “authoritative in all aspects rendering concise tissue diagnoses”, that he “appropriately solicited ‘expert’ extramural consultation opinions from noted” pathologists, and “to his credit constantly up-dated the primary surgeon of record in all instances as to their progress”. He also concurred with Plaintiff’s final diagnoses in 20 of 21 cases. [Lee Opp. Decl., Exh. 23 (Colburn Report to Barnes of 8/30/06 at Bates 0025924)]. Moreover, Harris, then-CMO, testified that “before [Plaintiff’s] leave of absence there was no quality concern. I’ve said that four times now. There was no quality concern over the cases prior to October of 2006.” [Lee Opp. Decl., Exh. 24 (Harris Depo at 192:7-13); see also Lee Opp. Decl., Exh. 24 (Harris Depo at 409:21410:3)]. Harris further testified: “I wasn’t even aware that his competency was an issue in this case.” When Plaintiff’s counsel responded: “Well, it certainly wasn’t from our view”, Mr. Wasser, defense counsel of record, volunteered: “It’s not from the defense either, but keep going, Counsel. We covered that before.” [Lee Opp. Decl., Exh. 25 (Harris Depo at 411:4-20)]. Regarding the period after Plaintiff’s return to work as a staff pathologist on 10/4/06, Harris testified that all complaints about Plaintiff’s competency were directed to him [Lee Opp. Decl., Exh. 24 (Harris Depo. at 60:14-22)]; and that Defendant County never conducted any peer review in response to any of those complaints. [Lee Opp. Decl., Exh. 24 (Harris Depo. at 58:4-59:1)].

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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

74. Letter to Dr. Roy from Jadwin, dated 4/20/05, in response to his complaint about late diagnoses. On page 3 Jadwin writes “Pathology diagnoses are consensus based, with few gold standards to affirm accuracy. Consultants offer opinions, not accurate diagnoses. There is no universally agreed upon definition for what constitutes an ‘accurate’ diagnosis.”

Document 282

DFJ00364 -366

Filed 12/01/2008

Page 32 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

75. Notes by Dr. Harris, 0027066dated 6/8/05, of a meeting 27068 between himself and Dr. Roy in which Dr. Roy again raises his concerns with the pathology department.

See evidentiary objections.

76. Notes by Dr. Harris, dated 7/1/05, of a meeting between himself and Dr. Roy. Dr. Roy had specific examples of his complaints about the pathology department including three missed diagnoses and an example-by name and report number--()f a pathology report changed after the fact by Jadwin.

002706927070

See evidentiary objections.

77. Letter from Dr. Roy to Jadwin, dated 7/15/05, responding to Jadwin’s letter to him dated 6/5/05 and stating that he (Dr. Roy) has raised pathology department mistakes, delays and discrepancies with Jadwin many times before.

DFJ00439 , DFJ00437

78. Phone message from Dr. Roy, dated 11/18/05, identifying a patient error by Jadwin.

0000506

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Document 282

79. Letter from Dr. Roy to Dr. Harris, dated 2/22/06, identifying 19 cases (with medical records backup) where KMC pathology department was wrong in their diagnosis, or very late in getting a diagnosis, or changing an initial wrong diagnosis.

0000434476

a) Pathology Quality Management Policy, September 2005, “Correction of significant error must be made through a corrected report.”

0018516

Filed 12/01/2008

Page 33 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

c) Two letters from Dr. Felix 0000432at USC to Dr. Roy, dated 433 3115/06 and 3/16/06, with diagnoses of samples that Dr. Roy sent to him. Handwritten notes on bottom of letters describe discrepancy with KMC pathology diagnosis and that pathology changed its diagnosis in one instance.

See evidentiary objections.

80. After returning from leave, Jadwin had to be told to slow down on regular case work because he was going too fast and making errors.

See evidentiary objections.

Dutt Depo., 8/20/08, pg. 285:623

19

to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

20 21 22 23 24 25

Other Mistakes 81. E-mail from Reyes to Dr. 0000398 Harris and Tony Smith, dated 4/17/06, reporting that Jadwin was making copies of patient files which is a Title 22 violation.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

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82. Minutes of the meeting of 0000899 the pathology/histology department on 10/17/06. It was noted that Dr. Shertukde was concerned that blades were not being removed once grossing was done. She and Dr. Dutt remove and discard the blades immediately. 83. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, reminding him of a rush case that Jadwin failed to process promptly and counseling Jadwin to remember it when criticizing others.

DFJ01449 DFJ01446 -1447

84. E-mail from Tracy Lindsey to Ramona Case, dated 11/27/06, stating that Jadwin had labeled some (9) placentas wrong and she gave the incorrect labels alongside the correct labels.

0000823

85. E-mail from Dr. Dutt to Yolanda Figueroa, dated 12/7/06, acknowledging her report that Jadwin had left two long blades and a scalpel out after he was finished.

0000862

20 21 22 23 24 25 26 27 28

Page 34 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety. See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety. See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety. Figueroa vigorously denies that this claim is true. (“Jadwin Opp. Decl.”) para. 6].

18 19

Filed 12/01/2008

86. Report from Dr. Dutt to Peer Review Committee, dated 12/14/06, describing with documentation five mistakes by Jadwin: 1) missed diagnosis and failure or refusal to seek outside consultation (with backup letter from Dr. McBride); 2) misdiagnosis of prostate carcinoma and of prostatic biopsies; 3) missed diagnosis of thyroid microcarcinoma; 4) performance of sternal bone marrow examination; and 5) assignment of procedures to physician without privileges.

0000882895

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

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24 25 26

Page 35 of 115

JADWIN’S INABILITY TO GET ALONG WITH OR COMMUNICATE WELL WITH OTHERS Policy 87. Policy Statement of the Disruptive Behavior, Discrimination & Harassment Policy “It is the policy of Kern Medical Center that all associates are expected to conduct themselves at all times while on hospital premises in a courteous, professional, respectful, collegial, and cooperative manner. This applies to interactions and communications with or relating to physicians, nursing and technical personnel, other caregivers, other hospital personnel, .. “ [emphasis added]

001068510688

Undisputed that the document says what it says.

88. Section V Item A of the 0010686Kern Medical Center 10687 Procedure on Disruptive Behavior, Discrimination and Harassment Policy “Examples of prohibited conduct include but are not limited to the following ..

Undisputed that the document says what it says.

a) 6. Use of racial, ethnic, epithetic or derogatory comments..

0010686

Undisputed that the document says what it says.

b) 8. Use of medical record entries to criticize KMC associates, policies or equipment, other practitioners, or others;

0010686

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

22 23

Filed 12/01/2008

Undisputed that the document says what it says. Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

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c) 14. Persisting to criticize, or to discuss performance or quality concerns with, particular KMC associates or others after being asked to direct such comments exclusively through other channels; .. “

0010687

89. Jadwin was dealt with pursuant to the Disruptive Physician Policy.

Harris Depo., 8/13/08, pgs. 330:21332: 3

8

11 12 13

Pulling Dr. Lau’s Tie

14

90. E-mail to Michael Ewald from Jadwin, dated 10/9/03, telling Ewald how to conduct the investigation into the “tiepulling” incident, who to talk to, and what questions to ask.

17

Undisputed that the document says what it says.

Undisputed that the document says what it says. Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007. Harris himself testified that he wasn’t sure if the policy was in place when he allegedly disciplined Plaintiff. In fact, the policy was ratified in May 2007. By that time, Plaintiff had been on Admin Leave and restricted to his home for 6 months. [Lee Opp. Decl., Exh. 24 (Harris Depo at 331:21-332:3)].

10

16

Page 36 of 115

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

9

15

Filed 12/01/2008

0000260 (Exhibit 560)

18 19 20

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: The investigator concluded: “Dr. Jadwin has expressed regret over the incident. This appears to be an isolated incident, and there have been no related complaints against Dr. Jadwin either before or after this incident.” [Lee Opp. Decl., Exh. 54 (Investigation Report of 10/21/03 at “Investigative Findings” item 4 on Bates 0000033)].

21 22 23 24 25 26

91. Confidential file of investigation of Jadwin pulling Dr. Lau by his tie, dated 10/21/03.

000003170

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

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a) Portion of Jadwin’s 0000061interview blaming Dr. Lau 63 for the incident, alleging a prior history of Dr. Lau being afraid of him because Jadwin (allegedly) points out Dr. Lau’s many mistakes.

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

b) During Jadwin’s interview, conducted on 10/17/03, Jadwin accepts that he pulled the tie, says he cannot really remember.

0000063

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

c) The investigator finds, by 0000034 a preponderance of the evidence, that (Item #2) Jadwin violated the Workplace Violence Policy of the County of Kern and potentially endangered the quality or efficiency of patient care (because both Jadwin and Lau testified that Lau told Jadwin that he could not accompany him because he had patient work to do).

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

92. Letter from Dr. Kolb to Jadwin, dated 11/26/03, reprimanding him for pulling Dr. Lau by his tie.

DFJ00246

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

93. Letter to Dr. Lau from Jadwin, dated 10/19/05, apologizing for past wrongs.

DFJ00590

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

Dispute with Radiology

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94. Dr. Ragland implied that Jadwin was wrong in the dispute with the radiology department because the procedurist (the radiologist) should chose the equipment he uses (gauge of needle is an example) because that is who is performing the task.

Document 282

Ragland Depo., 8/22/08, pgs. 155:2156:13

Filed 12/01/2008

Page 38 of 115

See evidentiary objections. Defendant County retained an outside consultant to review FNA procedures at KMC in 2004. The consultant, David Lieu observed the radiologists engaging in just one FNA procedure on a single day. [Lee Opp. Decl., Exh. 26 (Lieu Report of 5/3/04 at DFJ00260)]. By contrast, he reviewed 200 of Plaintiff’s FNA reports. [Id. at DFJ00266]. Despite this bias, he nevertheless concluded: 1) the radiologist still managed to err in the one procedure Lieu witnessed [Id. at DFJ00261], 2) Plaintiff made no errors in any of his 200 reports [Id. at DFJ00266]; 3) Radiologists needed to improve [Id. at DFJ00269]; and 4) Plaintiff should set up a weekly FNA clinic whereby pathologists would take FNAs on superficial masses, replacing the radiologists. [Id. at DFJ00268]. Ragland himself admitted that Lieu had found the radiologists’ FNA technique could be “improved”. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 230:23-25)]. By contrast, he admitted that Lieu had “determined that [Plaintiff] had sufficient [FNA] skill”. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 226:18-22)]. Later, Ragland admitted that the FNA concerns Plaintiff had raised were not just a communication issue but a valid “patient care issue” and that he had always known that even from the beginning. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 361:3-18)]. Yet, he had earlier characterized the FNA issue as merely a “feud” between pathology radiology and that the issue was the need for Plaintiff to improve his “communication”. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 219:25-220:7; 220:1621)]. This establishes Ragland’s retaliatory animus. Abraham shows her retaliatory animus when she likewise minimizes the FNA issue as merely a “communication” problem and unlike Ragland refuses to admit it was a patient care issue. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 67:7-15)]. Abraham later testified that, despite Lieu’s report, “we still were not satisfied with whether or not the – the pathology readings of the FNA was – was – was adequate.” [Id. at 56:16-22)]. She also testified that, even after the Lieu report came out, there remained doubts about Plaintiff’s competence as a pathologist. [Id. at 63:14-17] and that she remained loyal to her longtime friends, the radiologists. [Id. at 73:1-5]. When Plaintiff’s FNA reports were later confirmed as 100% accurate by ongoing outside reviews by UCLA, Ragland concocted far-fetched suspicions of fraud by Plaintiff which he unsuccessfully investigated, but directly confronted Plaintiff with. See Plaintiff’s Response to DMF 69 supra, which is incorporated in its entirety herein.

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Abraham Depo., 8/18/08, pgs. 59:660:2

See Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

a) Jadwin’s actual (failing) test for cervical pap smears. This test is conducted by the College of American Pathologists (CAP). Of interest, on Case #3 Jadwin marked “unsatisfactory for evaluation” when the accurate diagnosis was “squamous cell carcinoma.”

0000737

See evidentiary objections.

Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

15 16 17

20 21 22 23 24 25 26 27 28

See evidentiary objections.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

14

19

Page 39 of 115

95. Dr. Abraham, while discussing the FNA Consulting Report, mentioned that the radiologists were upset with Jadwin because he was accusing them of too many inadequate specimens (“unsatisfactory for evaluation”) when there were relatively few complaints of that before Jadwin arrived.

13

18

Filed 12/01/2008

96. Dr. Abraham talked about the lack of trust between the other doctors and Jadwin, which the FNA Consulting Project report addresses as communication problems.

Abraham Depo., 8/18/08, pgs. 62: 16-64:3

See Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

97. Kern Medical Center FNA Consulting Project report by Dr. David Lieu, M.D., M.B.A., dated 5/3/04.

DFJ00251 -270

Undisputed.

a) Consultant’s core issue is the lack of communication and complete distrust between radiology and pathology with negative ramifications for the clinicians and administration.

DFJ00255

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

See evidentiary objections.

But see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

See evidentiary objections.

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1 2

b) Consultant agreed with radiologists that long clinical history on the FNA reports was unnecessary.

Document 282

DFJ00257

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

Page 40 of 115

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. See evidentiary objections.

3 4

Filed 12/01/2008

c) “ .. Dr. Jadwin and DF100260 Disputed: for sake of economy, see Plaintiff’s Response radiologists do not to DMF 94 supra, which is incorporated in its entirety communicate at this level. herein. This suggests that a breakdown in communication is the fundamental problem. This bridge was burned down long ago.” d) “Finally, both radiology and pathology will work together to find the best needle for deep FNAs.”

DFJ00269

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

98. E-mail to Drs. Kercher and Kolb from Jadwin, dated 9/3/04, stating “You cannot dictate the size of the needle by policy” and calling Dr. Lieu “unjustifiably pompous,”

DFJ00289 -290

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

99. E-mail to Peter Bryan DFJ00319 from Jadwin, dated 2/2/05, -320 listing his suggestions for improvement on the FNA issue. Jadwin also states that the radiology department was “substantially at fault” for the conflict between the departments. He requested a formal apology from the radiology department to himself and the pathology department. He also requested (in bold lettering) a public announcement at the next Medical Executive Committee (hereinafter referred to as MEC) meeting that there are no quality issues involving the pathology department and Drs. Amin, Abraham, Munoz and Naderi should be standing at the podium during the announcement.

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

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100. Exchange of e-mails between Dr. Ragland and Jadwin, dated 2/25/05, in which Jadwin complains about some comments made by the radiologists at the February QM meeting and informing Dr. Ragland to be prepared for Jadwin to request him to call for supporting documentation from radiology or announce that the previous comments were unsupported. Dr. Ragland shot back his displeasure at the continuing conflict between radiology and pathology, and stated that his committee will not become a battleground for this conflict.

Document 282

DFJ00353 -354

Filed 12/01/2008

Page 41 of 115

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. Despite the fact that Ragland was chair of the quality committee and the fact that, as he himself testified, he knew from the beginning that the FNA issue was a patient care issue, he refused to let Plaintiff address it at the Quality Management meeting. He retaliated against Plaintiff by dismissing the issue as “battling doctors” and attacking Plaintiff for his “poor” communication skills.

Length of Presentations/October 2005 Oncology Conference

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101. Exchange of e-mails DFJ00241 between Dr. Ragland and -242 Jadwin, dated 11/19 & 11/20/03, about the last Quality Management meeting. Dr. Ragland contradicted Jadwin’s statement that the pathology presentation during the meeting was 20 minutes; Dr. Ragland said it went on much longer than 20 minutes and proceeded to give Jadwin advice on which information was most important to present and how it could be presented succinctly.

10 11

13 14 15 16 17 18

22 23 24 25 26

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. Despite the fact that Ragland was chair of the quality committee and the fact that, as he himself testified, he knew from the beginning that the FNA issue was a patient care issue, he refused to let Plaintiff address it at the Quality Management meeting. He retaliated against Plaintiff by dismissing the issue as “battling doctors” and attacking Plaintiff for his “poor” communication skills.

In his depo testimony, Ragland was so extreme in his retaliatory animus against Plaintiff, he became almost a caricature. [Lee Opp. Decl., Exh. 9: 54:2-21; 138:3-10)].

19

21

Page 42 of 115

In one email exchange with Bryan, he expressed his disdain for Plaintiff’s whistleblowing efforts: “that was one of the most distasteful event I have ever participated in [Plaintiff] has fixed his department so now he is going to fix us?” [Lee Decl., Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)]. Bryan made no bones about indicating that his allegiance lay with Ragland, Harris, Abraham and Kercher: “I know it was really challenging to remain cordial and not combative [with Plaintiff], and goodness a couple of you could have really hit back”, even as he portrayed himself as an impartial adjudicator to Plaintiff. [Ibid.].

12

20

Filed 12/01/2008

102. Memo from Dr. Ragland to Jadwin, dated 1/21/04, that presentations must be concise and that the last Blood Usage Report-52 slides-will not fit in the allotted time.

DFJ00248

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. Despite the fact that Ragland was chair of the quality committee and the fact that, as he himself testified, he knew from the beginning that the FNA issue was a patient care issue, he refused to let Plaintiff address it at the Quality Management meeting. He retaliated against Plaintiff by dismissing the issue as “battling doctors” and attacking Plaintiff for his “poor” communication skills.

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DFJ00381

15 16 17 18

Disputed: For sake of economy, see Plaintiff’s Response to DMF 104 and DMF 106 infra.

104. Instructions for the Cancer Conference presenters 1) the presentation is to contain less than 10 slides, 2) length not to exceed 20 minutes for comprehensive background and overview of testing, and 3) all physicians involved in the case being presented must be notified beforehand.

Patel Depo., 12/6/07, Exhibit 25

Disputed: The document specifies NO time limits for the pathology portion of the presentation, contrary to Defendants’ claims and consistent with what Plaintiff claims. Defendants fundamentally misconstrue this document. The guidelines are directed to the RESIDENT who will be introducing the case, giving the background and going through preliminary slides at the beginning, as evidenced by the instruction “You will be required to meet with both the Pathologist and Radiologist to discuss the case to be presented at least 4 working days before the conference. It is also your responsibility to notify ALL physicians involved in the case you are presenting.” It is NOT directed at the pathologists. [Lee Opp. Decl., Exh. 28 (Conference Guidelines at Bates 0000804); Lee Opp. Decl., Exh. 29 (McBride Depo. at 362-16)].

105. Pathology Dept.’s DFJ00508 oncology conference -574 presentation--67 slides-by Jadwin, reviewing gynecology cases and alleged errors in diagnosis by University of Southern California (hereinafter referred to as USC).

Disputed: See Plaintiff’s Response to DMF 104 supra and DMF 106 infra, which are incorporated in their entirety herein.

Disputed: McBride stated that the purpose of the memos from the Cancer Committee to Plaintiff was NOT to reprimand Plaintiff or anybody in particular. [Lee Opp. Decl., Exh. 29 (McBride Depo. at 28:3-8)].

12

14

Page 43 of 115

103. Memo from Dr. McBride to Jadwin, dated 5/9/05, requesting that the time required for the pathology presentation at the oncology conference be kept to a minimum.

11

13

Filed 12/01/2008

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106. Memo from the Cancer Committee (Drs. Patel, Johnson, and McBride) to Jadwin, dated 10/12/05, insisting that his presentation take no more than 5 minutes per patient case.

Document 282

DFJ00578

Filed 12/01/2008

Page 44 of 115

Disputed: For sake of economy, see Plaintiff’s Response to DMF 104 supra, which is incorporated in its entirety herein. McBride testified that: 1) McBride was the timekeeper and there was no one better positioned to keep track of the timing of events at the October Conference [Id. at 32:2-5; 33:19-22]; 2) Plaintiff and the resident presenter together spoke at the October Conference for a total of 20 minutes, during which the resident typically spoke for “roughly” 5 minutes [Id. at 37:18-21; 39:10-20]; hence, Plaintiff’s presentation only took 15 minutes max; 3) the total conference time was typically 1 hour [Id. at 15:16-19]; 4) he did not disagree with Plaintiff when Plaintiff informed him that the director of a preeminent cancer center had stated that it is not reasonable to limit the time of the pathology presentation, that the “pathology department has presented concise, well organized presentations for years”, that Plaintiff’s October Conference presentation detailed “problems encountered with this patient’s care and hopefully improve general awareness about important KMC patient care issues”, that “other oncology conferences have run over without incident and most other conferences throughout [KMC] run over all of the time”, etc. [Lee Opp. Decl., Exh. 29 (McBride Depo. at 54:24-55:16; 57:7-8); Lee Opp. Decl., Exh. 30 (Jadwin letter to McBride of 10/19/05 re October Conference at DFJ00591)]; 5) “I was not unhappy with [Plaintiff’s October Conference] presentation. He had a lot of good material to present.” [Id. at 46:11-14)]; 6) He had moderated “many, many” Cancer Conferences [Id. at 37:2-6)], 7) the first presentation on the morning of the October Conference ran over by about 5 minutes without incident and that “it was not uncommon” for time overruns to occur at Cancer Conferences. [Id. at 49:1725)]; 8) he could not recall any other physician receiving a letter of reprimand for running over time at a Cancer Conference; 9) he had moderated “many, many” Cancer Conferences [Id. at 50:1-7)]; 10) Harris had forced him to write a letter of dissatisfaction against Plaintiff at the end of the October Conference [Id. at 29:11-13]; 11) he didn’t want to do write the letter [Id. at 30:1-8]; 12) that he was not upset with Plaintiff for going over time [Id. 33:1934:6]. Plaintiff’s expert, Lawrence Weiss, Chair of Pathology at City of Hope in Duarte, CA, stated re Plaintiff’s time overrun: “Customarily, if an Oncology Conference runs over the time scheduled, those attendees who need to leave to perform other duties simply do so…. In all my years of experience, I have never seen a physician’s privileges threatened for such an insignificant and patently unwarranted reason.” [Decl. of Lawrence Weiss (“Weiss Decl.”) at pp. 4-5.

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Page 45 of 115

107. Anonymous (redacted) memo (author-Dr. Taylor) of complaint about Jadwin’s oncology presentation, dated 10/12/05. Some quotes: “ .. inappropriate to bring political/personal battles to an educational forum filled with residents and students,” and “ .. inappropriate to ‘bash’ reputable institutions like USC and Stanford,” and “ ..made [Jadwin] look like a conceited, pompous buffoon.”

DFJ00580

108. Dr. Royce Johnson also voiced a complaint.

Harris Depo., 8/13/08, pgs. 126:8127: 19

See evidentiary objections.

109. Oncology Conference Performance Evaluations of 10/12/05 where criticisms of Jadwin’s presentation are written in the comments section on the following Bates-stamped pages: 0000516,522,526,536, and 548.

Exhibit 190

Disputed: in those same evaluations, Plaintiff’s presentation received high praise from the majority of attendees. [Lee Opp. Decl., Exh. 31 (October Conference Feedback at 0000517, 520, 521 (“V. good speaker, confident & clear”; “V. important topic for women’s health”), 523, 524, 527, 528, 531 (“Great”), 534, 537, 538, 539, 542, 544, 545.

110. Dr. Ragland was not present at the October Oncology Conference so his testimony was limited to the comments he heard Jadwin make regarding the conference (which is an admission against interest). Dr. Ragland said that Jadwin’s excuse for monopolizing the oncology conference was that “the only important information on that case was his.”

Ragland Depo., 8/22/08, pgs. 106: 18-109: 14 and 156:14-25

Disputed: Plaintiff never said that “the only important information on that [October Conference] case was his.”. [Jadwin Opp. Decl., para. 7].

11 12

Document 282

See evidentiary objections. Disputed: See Plaintiff’s Response to DMF 104 supra and DMF 106 infra, which are incorporated in their entirety herein.

Disputed: See Plaintiff’s Response to DMF 104 supra and DMF 106 infra, which are incorporated in their entirety herein.

See evidentiary objections.

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111. Dr. Abraham testified that Jadwin went on much longer than a normal pathology presentation and she was embarrassed for him and by some of the things that he said. Her overall feeling was one of discomfort. She definitely felt that his criticisms of outside consultants were inappropriate and further evidence of his arrogance because the issue was not one of who was- right-andwho-was-wrong but of the actual sample and how it could be read. Jadwin’s position that it is a patient care issue presumes that Jadwin is right and Dr. Roy and the outside pathologist are wrong.

Document 282

Abraham Depo., 8/18/08, pgs. 14: 10-21: 17 and 131:5133:23 and 135:24138:22

Filed 12/01/2008

Page 46 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Responses to DMF 94, 104, 106, 113.

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112. Dr. Dutt believed that Jadwin retaliated against Dr. Roy by verbally attacking him, angrily, at the October oncology conference.

Document 282

Dutt Depo., 8/20/08, pgs.292:2 5-293:20

Filed 12/01/2008

Page 47 of 115

See evidentiary objections. Disputed: Dutt insisted that the Paycut Amendment to Plaintiff’s contract limit his medical leave allowance upon his return to work in retaliation for his prior medical leaves. [Lee Opp. Decl., Exh. 48 (Dutt email to Barnest of 9/14/06 at 0000830)]. Then-CEO Culberson testified that Dutt, Plaintiff’s former subordinate who had been elevated to replace him as Acting Chair of Pathology, could be biased against Plaintiff. [Lee Opp. Decl., Exh. 11 (Culberson Depo. at 163:12-16)]. Plaintiff’s expert, Dr. Lawrence Weiss, stated in his report: “Dr. Dutt’s so-called peer review of Dr. Jadwin was not only unwarranted, but was also non-compliant with customary and KMC’s procedures (that would require that reviewer comments be returned to the original pathologist and the original pathologist be given an opportunity to review the slides, make an assessment and acknowledge the receipt of the comments by the original pathologists), and not designed to achieve any legitimate peer review purpose that I can discern.” [Weiss Decl., Exh. 1 at p. 8-9]. According to Culberson, sometime between August 2006 and May 2007, Dutt investigated Plaintiff for competency errors and reported to him that “There were several matters that it was clear the outside consultant did not believe that the way matters were handled [by Plaintiff] was proper.” [Lee Opp. Decl., Exh. 11 (Culberson Depo. at 165:9-20; 166:6-20)]. Dutt confirmed submitting such complaints to then-CMO Harris about Plaintiff’s competence in the middle of November 2006. [Lee Opp. Decl., Exh. 47 (Dutt Depo. at 289:5-21; 289:25-290:7)]. Dutt also confirmed that he told Plaintiff he was subjecting his report to outside peer review, then locked up the slides at issue and denied Plaintiff access to them. [Id. at 35:5-36:15; 38:4-25; 297:14-21; 298:3-13]. Harris testified at his depo. that “There was no quality concern over [Plaintiff’s] cases prior to October of 2006.” [Lee Opp. Decl., Exh. 24 (Harris Depo at 192:7-13); see also Lee Opp. Decl., Exh. 24 (Harris Depo at 409:21410:3)]. Harris further testified: “I wasn’t even aware that [Plaintiff’] competency was an issue in this case.” [Lee Opp. Decl., Exh. 25 (Harris Depo at 411:4-20)]. Regarding the period after Plaintiff’s return to work as a staff pathologist on 10/4/06, Harris testified that all complaints about Plaintiff’s competency were directed to him [Lee Opp. Decl., Exh. 24 (Harris Depo. at 60:14-22)]; and that Defendant County never conducted any peer review in response to any of those complaints. [Lee Opp. Decl., Exh. 24 (Harris Depo. at 58:4-59:1)].

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Document 282

113. Letter from Drs. Kercher, Ragland, Abraham and Harris to Jadwin, dated 10/17/05, about Jadwin’s October oncology presentation. The criticisms of the presentation were 1) it exceeded the time allotted to it, 2) Jadwin failed to follow the leader of the conference on brevity, and 3) Jadwin used a public forum for a personal agenda and/or for making a political statement.

DFJ00588

114. E-mail from Dr. Ragland to Dr. Harris, dated 10/18/05, describing Jadwin’s attitude during the meeting on 10/17/05. When handed the evaluations of his presentation, he would not look at them. The e-mail states that Jadwin has a “lack of communication skills” and fails to “extend basic courtesy to his colleagues.”

0000094

9

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 48 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Responses to DMF 94, 101, 104, 106, 126, which are incorporated in their entirety herein.

8

10

Filed 12/01/2008

Disputed: The fact that the letter references “personal agenda” and “political statement” is, if anything, direct evidence that Defendants were retaliating against Plaintiff for blowing the whistle on the fact that the patient whose case was being discussed at the October Conference had received a hysterectomy based upon outside pathology reports from USC that had been wrongly based upon incorrectly oriented slides. As Abraham testified, the political point referenced was the errors made by USC in their pathology report which Plaintiff was highlighting in his October Conference presentation – the very patient care issue which Plaintiff was raising. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 148:2-9)]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Responses to DMF 104, 106 and 113 supra, which is incorporated in its entirety herein. Disputed: Plaintiff’s recollection of this meeting is entirely opposite to what is described in this email. Plaintiff recalls: “Dr. Ragland began by saying “So Dr. Jadwin, Mr. Perfect, here we are again, having problems with your behavior.” He said that he had been selected to deal with this issue. I said I wanted Mr. Bryan present. Kercher said this has nothing to do with Peter, this is a medical staff issue. Dr. Kercher started yelling at me: “David if you needed more time, why didn’t you tell Dr. McBride beforehand?” Dr. Ragland read the letter of reprimand aloud to me, which stated that letters were placed in my file. When I asked to see them, Dr. Harris said that I could not see them. When I turned to address Dr. Kercher, as the senior person in the room, Dr. Ragland on two occasions said “Don’t look at him, look at me; I am the person you need to talk to!” and “Noo, don’t look at [Kercher] look at me. That’s riiight, you don’t need to look at him, you need to look at me.” It was humiliating. Drs. Kercher and Ragland who were not at the conference, obviously listened to Dr. Harris’s account only. I was not given an opportunity to speak or otherwise defend myself.” [Jadwin Opp. Decl., para. 8].

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115. Jadwin’s evaluation of the 11/9/05 oncology conference (what he filled out). He complained that it ran to 8:38 a.m. and he noted he would discuss the overrun with Dr. McBride.

Document 282

DFJ00689

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

116. Memorandum to 0001566Supervisor Michael Rubio, 1567 District V, from Peter Bryan, dated 1/17/06, giving him background on the problems arising from the October oncology conference. Bryan tells of a meeting he had with Jadwin about a week after the conference in which Jadwin was extremely angry and making loud, derogatory comments about various members of the medical staff. He said he became concerned about Jadwin’s emotional health. He also said that Jadwin has never been able to state a resolution to the impasse. Bryan also says that he will meet again with Jadwin and inform him of some expectations for future conduct, or he will consider removing him as the chairman of the pathology department.

Filed 12/01/2008

Page 49 of 115

See evidentiary objections. Disputed: Defendants omit Dr. Shertukde’s feedback form which confirms that “The conference ran to 8:38 am” [Lee Opp. Decl., Exh. 32 (Oncology Conference feedback form of Shertukde of 11/9/05 at DFJ00686). The conference is supposed to end at 8:30 am [Lee Opp. Decl., Exh. 29 (McBride Depo. at 32:26-33:3)], so this represents an 8 minute overrun for which no one was reprimanded. In contrast, the October Conference ended at 8:25 a.m., 5 minutes early. [Lee Opp. Decl., Exh. 29 (McBride Depo. at 39:6-9)]. Nevertheless, Plaintiff was severely reprimanded for an alleged time overrun. Undisputed that the document says what it says. Disputed: This memorandum’s reference to “emotional health” is direct evidence that Bryan knew of Plaintiff’s depression disability and that he was discriminating against him on that basis.

PCCs

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117. PCC issue was a difference in professional judgment, the process by the nursing staff was working for them, and Jadwin failed to work within the institution and committee structure. Also, Bryan inferred that Jadwin had accused Toni Smith of ethical lapses which is an example of “a pattern of inability to establish an effective means of dialogue.”

Document 282

Bryan Depo., 8/14/08, pgs. 205:6206: 25 (Exhibit 291)

Filed 12/01/2008

Page 50 of 115

See evidentiary objections. Disputed: PCC issue was NOT a difference in professional judgment. It was an issue of illegal noncompliance with H&S § 1602.5 and AABB standards. The DHS later concluded that KMC was not complying with blood transfusion documentation and reporting procedures. [Jadwin Decl. (Doc. 265), Exh. 13 (DHS’s Fax to Jadwin of 8/11/08 at E264 on pages 2-4 (finding almost 50% noncompliance at KMC)]. The fact that Bryan ignored and belittled Plaintiff’s many reports of PCC noncompliance as a “difference in professional judgment” and indication of Plaintiff’s deficient leadership style and later caused Plaintiff to be demoted is further evidence of Bryan’s hostility to whistleblowers. For Bryan, “dysfunction” is nothing more than a code word for whistleblowing. Legal noncompliance becomes an issue of ethics when people choose to disregard it instead of fixing the problem. Bryan and Smith are guilty of ethical lapses in their betrayal of the public trust. Even as late as 8/14/08, Bryan still didn’t get it. He continued to minimize the PCC issue as an “inability of two professionals to sit down and have a constructive dialogue, to come up with a satisfactory solution.” [Lee Opp. Decl., Exh. 3 (Bryan Depo at 230:25-231:5)]. He took no responsibility whatsoever as then-CEO for failing to step in and break the deadlock between Nurse Executive Smith and Plaintiff, nor for failing to discipline Smith for her incompetence or willful resistance to bringing KMC into compliance with H&S 1602.5. He is under the delusion that all responsibility for enforcing compliance with regulations at KMC rested with Plaintiff alone, and not anyone else, including him and Smith. Bryan was far from impartial and demonstrated a clear bias against Plaintiff over time. [Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16 (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)]. Joseph Mansour, a doctor in OB-GYN, similarly testified that when he blew the whistle to Bryan on improper publicly-funded malpractice coverage of KMC doctors’ activities outside of KMC, Bryan discounted / disagreed with the concern. Mansour testified that the Kern County Board of Supervisors became aware of the problem and later canceled all such improper policies. [Lee Opp. Decl., Exh. 33 (Mansour Depo. at 98:18-99:12; 104:11-25)].

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Document 282

118. E-mail to Toni Smith, DFJ00408 R.N. from Jadwin, dated -409 5/20/05, inquiring after audits of the nursing department of which only one was received and arguing that PCCs should be sent to the blood bank when complete.

Undisputed.

119. E-mail to Toni Smith from Jadwin, dated 5/20/05, recounting Jadwin’s telephone conversation with Holly Rapp, AABB Accreditation Director.

DFJ02499

Undisputed.

120. Exchange of e-mails between Toni Smith and Jadwin, dated between 6/15/05 and 6/28/05, about the PCC issues. In 0000423, Jadwin states that a PCC must not be signed until the time of the infusion, or KMC is not meeting AABB accreditation standards.

0000421424

Undisputed.

Filed 12/01/2008

Page 51 of 115

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Document 282

121. Typed notes, dated 1/10/06, of interviews with various people and institutions re: sending the Product Chart Copies (PCCs) back to the blood bank (pathology). The author unknown- interviewed Michelle Burris who said there is no reason to return PCCs to pathology. The author interviewed Ann Schadler, UCLA Blood Bank Director, who said their PCCs are in the patient’s record only, not the blood bank. The author interviewed Julia, UCSD Blood Bank, who said there was no reason to return the form to the blood bank. The author also interviewed Dr. Wu and Jay, supervisor of Mercy Lab and Blood Bank, who said that the PCC goes in the patient’s record and there is no reason to return the PCC to the blood bank.

0000572

122. E-mail to Peter Bryan from Jadwin, dated 4/10/06, about several issues but he brings up non-compliance with state regulations, JCAHO, and AABB on the issues of the PCCs.

DFJ00784

123. Notes of meeting dated 4/14/06 with Peter Bryan, Karen Barnes and Jadwin on 4/13/06. There is no problem with the PCCs because 5 charts were reviewed (and approved) by JCAHO.

DFJ00788

124. E-mail to Peter Bryan from Jadwin, dated 4/17/06, claiming that the JCAHO review was too small of a sample and KMC was in noncompliance on their handling of the PCCs and there was a need for action.

DFJ00793

Filed 12/01/2008

Page 52 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

Undisputed. Seven days later, on 4/17/06, Bryan threatened Plaintiff with termination. This is compelling evidence of whistleblower retaliation. “Dysfunction” for Bryan is nothing more than a code word for whistleblowing. [Lee Decl., Exh. 12 (Bryan Memo to Jadwin of 4/17/06 re Termination Threat at DFJ000795)]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

Undisputed.

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Page 53 of 115

a) Bryan criticizes Jadwin’s 57 memos to Toni Smith, R.N. as a “way of flooding the system and seeing what sticks and what doesn’t.”

Bryan Depo., 8/14/08, pg. 226: 10-16

Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

125. Memo to Peter Bryan from Toni Smith, dated 4/17/06, responding to Jadwin’s e-mail to Peter Bryan of 4/17/06, disagreeing with Jadwin’s characterization of the PCC situation and stating that Jadwin’s proposals on this issue were strategies that have previously been rejected by KMC.

0000401403

Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

See evidentiary objections.

See evidentiary objections.

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126. Harris had complaints about Jadwin’s handling of the PCC issue-Jadwin was demanding, inflexible, unreasonable in wanting the originals, impatient.

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

Harris later testified: “I wasn’t even aware that [Plaintiff’] competency was an issue in this case.” [Lee Opp. Decl., Exh. 25 (Harris Depo at 411:4-20)].

Document 282

Harris Depo., 8/13/08, pgs. 268:8-23

Filed 12/01/2008

Page 54 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 112 and 117. Harris’s view of Plaintiff’s reports of non-compliant PCCs is further evidence of Harris’s hostility to whistleblowers like Plaintiff. Harris’s retaliatory animus is well-documented. Harris had coordinated with a gynecologist, William Roy, in 2005 to 2006 to conduct retaliatory peer review of Plaintiff’s work. As Plaintiff’s expert Dr. Lawrence Weiss noted in his report: “However, contrary to customary practice, the peer review was not opened in a timely fashion, occurring more than six months after Dr. Roy provided a list of [Plaintiff’s] cases to Dr. Harris (Bates No. 434-438), and more than a year after Dr. Jadwin challenged Dr. Roy to provide the cases for which he questioned Dr. Jadwin’s abilities in a letter copied to the hospital administration and the medical staff leadership (Bates No. 1614). If the interests of patient care were to be served, the cases would have been provided and the review performed promptly.”[Weiss Decl., Exh. 1 at p. 7]. Weiss further noted: “It is very clear that these peer review activities were not conducted as an educational tool or as a method of risk reduction, as is customary. Peer review needs to be conducted confidentially--opaque to the world outside of the Medical Staff; but it is not conducted like the inquisition, in which one does not know who the accuser is or what the allegations are. In my entire career, I have never encountered so much peer review directed at one individual and with so little return.” [Weiss Decl., Exh. 1 at p. 6-7]. Plaintiff is not the only whistleblower to whom Harris was hostile. Joseph Mansour, a doctor in the OB-GYN department, testified that when he blew the whistle to Harris on improper publicly-funded malpractice coverage of KMC doctors’ activities outside of KMC, Harris said he was aware of the problem and thought it was fine, then suggested to Mansour “why don’t you go use this malpractice coverage and work at hospitals and get free coverage [yourself]”. Mansour view of Harris’s unethical suggestion was that “I thought it was outrageous to do that”. Mansour then testified that the Kern County Board of Supervisors became aware of the problem and later canceled all such improper policies. [Lee Opp. Decl., Exh. 33 (Mansour Depo. at 100:14-25; 101:8-21; 104:11-25)]. The conversation between Harris and Mansour is memorialized in one of Harris’s memos to file. [Lee Opp. Decl., Exh. 34 (Harris memo to file of 5/10/06 at 0027083-27084)].

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127. Toni Smith, R.N. explained that the reason that some PCCs looked like they were not complete is that the PCC form was actually in duplicate and the nurses were not consistent about writing on only one copy and throwing the blank copy away.

Smith Depo., 8/19/08, pgs. 59:460: 13

128. Toni Smith said that Jadwin was never interested or willing to listen to her ideas. When asked what Jadwin’s physical demeanor was like in these conversations in which he was allegedly uncooperative, she said “He was obviously frustrated, obviously not going to change his mind, obviously not willing to listen to anything. I presented cases from other hospitals, some of the lab directors that I hold in high esteem. [He] had no interest in any of that.”

Smith Depo., 8/19/08, pg. 65:213 and 74: 12-22

129. Jadwin’s idea to have the PCCs stored in his department may violate California law, Title 22, by fragmenting the medical record. Jadwin’s idea was opposed by Toni Smith, R.N., the medical records department, and the medical records committee which ultimately determines what the contents of a medical record will be.

Smith Depo., 8/19/08, pg. 71:221

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D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections. D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

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130. Toni Smith, R.N. offered a succinct description of her conversations with Jadwin on the issue of PCCs. The conversations were not professional conversations”It just was a dead-end conversation. I mean, he had his mind made up that those things-he had never seen an organization where they hadn’t been stored in the lab. I had indicated-I indicated to him that I had never seen an organization where they were stored in the lab. And I questioned him as to how he was going to be able to locate that if we needed it for patient care purposes. I think he said he was going to store them in binders or in notebooks or boxes or something. You know, it was See evidentiary objections: Irrelevantas far as I was concerned. I felt that it was very important to have that information-one, we needed to know that the patient hadhad received the blood. We needed the vital sign information during the blood transfusion part, which would leave a huge gaping hole in patient information if that was stored somewhere in the lab.”

Smith Depo., 8/19/08,p gs.72:1973:17

131. Toni Smith considered Jadwin’s conduct at the MEC meeting as uncooperative, refusal to consider other points of view or suggestions, etc.

Smith Depo., 8/19/08, pg. 77:920

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D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

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132. Jadwin’s charges of being out of compliance with regulatory agencies were unfounded, and regulatory agencies found no jeopardy of KMC’s level of compliance.

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D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation.

Disputed: Smith later testified that another KMC audit of PCCs confirmed Plaintiff’s finding of “less than 100 percent compliance” and that even regarding one percent or two percent incomplete or inaccurate PCCs, “I would never say that was okay”. [Lee Opp. Decl., Exh. 35 at 85:18-20; 87:17-23;

11 12 13 14

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Disputed: At her deposition, Smith claimed not to recall whether DHS found KMC blood transfusion documentation procedures to be noncompliant, even though she is Nurse Executive, in charge of nurses who fill out PCCs at time of transfusion. [Lee Opp. Decl., Exh. 35 at 82:24-83:4)]. One month earlier, DHS had issued their report finding PCC deficiencies to KMC. [Jadwin Decl., Exh. 13 (DHS Report of 7/22/08)]. Smith is either incompetent or lying.

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See evidentiary objections. In General Treatment of Other Staff

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133. Dr. Abraham gradually had fewer and fewer interactions with Jadwin because his attitude was pompous and arrogant. Since the conversations with Jadwin were not cordial, it negatively affected patient care. She didn’t discuss Jadwin’s attitude with other doctors because she thought his attitude was evident to everyone.

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Abraham Depo., 8/18/08, pgs. 49: 16-52:9 and 75:22-76: 19

8 9 10 11 12 13 14 15 16 17 18

20 21

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Disputed: Mr. Bryan (Former CEO), Dr. Abraham (Former President of Medical Staff), Dr. Ragland (Former President of Medical Staff), Dr. Kercher (Former President of Medical Staff), Ms. Smith (Nurse Executive), and Dr. Dutt (Acting Chair of Pathology and Plaintiff’s former subordinate) were in the minority of people who were detractors of Plaintiff. The vast majority of people – Dr. Martin (Surgery Chair), Ms. Gallegos (Histotech), Dr. Kolb (Former CMO), Ms. Lindsey (Secretary), Ms. Lopez (Clerk), Dr. Mansour (OB-GYN physician), Mr. Martinez (Former Lab Manager), Dr. McBride (Former Cancer Conference Director), Dr. Naderi (Radiology Chair), Dr. Patel (Cancer Committee Chair), Ms. Ramos (Secretary), Dr. Taylor (Surgeon), Dr. Wrobel (Neurosurgeon), and Dr. Yoo (Psychiatry Chair) – liked Plaintiff, reported having no or few bad interactions with him and found he generally conducted himself professionally. [Lee Opp. Decl., Exh. 36 (Martin Depo. at 34:24-35:2; 91:14-19); Exh. 37 (Gallegos Depo. at 23:19-25; 24:17; 28:7-9); Exh. 38 (Kolb Depo. at 17:12-16; 19:17-21:18; 22:19-23:1; 75:11-76:10; 62:10-19; 36:21-19); Exh. 39 (Lindsey Depo. at 8:23-10:3); Exh. 40 (Lopez Depo. at 8:19-20; 10:4-8; 11:3-8; 12:4-19; 15:20-16:13); Exh. 33 (Mansour Depo. at 10:2-4); Exh. 8 (Martinez Depo. at 121:2-7; 122:8-123:1; 124:18-21; 127:18-21; 130:12-16; 133:17-22); Exh. 29 (McBride Depo. at 91:3-92:24); Exh. 41 (Naderi Depo. at 63:18-64:19; 75:17-22); Exh. 42 (Patel Depo. at 16:2-6; 16:17-19); Exh. 43 (Ramos Depo. at 47:9-48:9; 48:22-49:2; 49:10-12); Exh. 44 (Taylor Depo. at 88:23-89:25; 90:16-90); Exh. 45 (Wrobel Depo. at 12:15-13:18); Exh. 46 (Yoo Depo. at 10:20-11:23; 12:4-6; 12:22-24).

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94.

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Even Dr. Kercher testified “I don’t ever remember [Plaintiff] specifically treating me in a sassy, mean, horrible way” and “he was always nice to me”. [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo at 32:9-13; 32:2533:3)].

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134. Dr. Abraham testified that many or most physicians reported difficulties in getting along with Jadwin.

Abraham Depo., 8/18/08, pgs. 185:7187:9

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. The group of people alleging difficulties with Plaintiff were in the minority of people retaliating against Plaintiff - Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt. See evidentiary objections.

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135. Jadwin’s communication style was, to some people, offensive and abrasive, and he had a hard time accepting differing opinions from others.

Bryan Depo., 8/14/08, pgs. 90:492:2

136. “Compromise” was not in Jadwin’s vocabulary. It is not enough to be right; a department chair must exercise judgment on how to deal with others.

Bryan Depo., 8114/08, pgs. 100: 12102: 1

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Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt were intolerant in accepting the patient care and noncompliance issues Plaintiff was blowing the whistle on.

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt were just as intolerant in accepting the patient care and noncompliance issues Plaintiff was blowing the whistle on. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

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Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

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137. Jadwin said Dr. Ragland was not qualified to be a staff officer, and he called Dr. Harris an idiot on several occasions.

Bryan Depo., 8/14/08, pgs. 107:16109:11

138. E-mail to Bryan from Jadwin asking Bryan what he (Bryan) has done on the cytotech issue. Bryan said that he was not the appropriate person to resolve this. Jadwin should be directing this to the chairman; Bryan only gets involved if approval is necessary.

Bryan Depo., 8/14/08, pgs. 171: 17-173:11 (Exhibit 271)

See evidentiary objections. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt engaged in retaliatory attacks against Plaintiff which were far more severe and coordinated. See evidentiary objections. Disputed: Plaintiff had discovered Elsa Ang, a former pathologist, had made failed to diagnose florid cancer in numerous prostate slides, raising a serious patient care issue. Plaintiff reported the issue to Bryan and Bryan’s response was, true to form, to disregard it. Only later did Bryan finally decide to ask Harris to look into the issue. This is further evidence of Bryan’s hostility to whistleblowers. [Lee Opp. Decl., Exh. 49 (Jadwin email to Bryan of 10/17/05 at DFJ00589); Exh. 50 (Jadwin email to Bryan of 3/2/06 at DFJ00750); Exh. 51 (Emails between Bryan and Plaintiff of 4/21/06 at DFJ00799)].

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139. Bryan recalls private conversations with Jadwin where Jadwin challenged Toni Smith’s competency as chief nursing officer.

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Bryan Depo., 8/14/08, pg. 230: 10-15

5 6 7

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140. Jadwin was so obsessed with personnel actions or inactions that he was distracted in his duties. “ .. his behavior threatened a healthy, productive work environment at the hospital.”

Harris Depo., 8/13/08, pgs. 171: 16174: 8 pg. 173:910

141. In most cases, doctors know how to calm each other down and act professionally and collegially. Jadwin was “unusual.” Jadwin was unable to interact collegially and professionally to create a healthy, collaborative working environment.

Harris Depo., 8/13/08,p gs.212:16 218: 11 pg.215:18 -21

142. Jadwin denied referring to Dr. Epstein as cavalier. Jadwin said that on another matter, at another time, he said that Dr. Epstein’s diagnoses were a little cavalier.

Jadwin Depo., 3/12/08,9 01:12903: 1

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Bryan did not display similar concern when Plaintiff’s FNA competency was being attacked in retaliatory fashion by Ragland, Abraham, Kercher, Harris, Smith, and others. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. Smith is either incompetent or retaliating.

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Harris leveled far more severe charges of assault, intimidation and violence at Mansour, yet Mansour was not subjected to administrative leave or nonrenewal as Plaintiff was. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Harris leveled far more severe charges of assault, intimidation and violence at Mansour, yet Mansour was not subjected to administrative leave or nonrenewal as Plaintiff was. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). See evidentiary objections. See evidentiary objections. Disputed: Pathologists disagree with outside experts all the time. That was the basis for the policy of internal pathology review of outside expert reports which Plaintiff was espousing at the October Conference. Dr. Patel, Chair of the Cancer Committee, enthusiastically supported Plaintiff’s advocacy. [Lee Opp. Decl., Exh. 42 (Patel Depo. at 38:3-7; 38:20-22; 41:11-21)].

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143. Dr. Ragland testified that Jadwin acted inappropriately in several instances.

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Ragland Depo., 8/22/08, pg. 12:823

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a) The first incident was pg.16:15when Jadwin, in a meeting, 16. said Dr. Ragland was incompetent and shouldn’t be the medical staff president. b) The second incident was Jadwin taking over the blood usage committee and not letting any other physicians on it. Jadwin sent Dr. Ragland an e-mail stating that he thought having other physicians on the committee was a waste of time because “they will all rubber stamp it.” Dr. Ragland interpreted this to mean that Jadwin did not think that anyone else at KMC had the competence or experience to sit on the committee.

pgs. 59:21-60: 17 and 86:5-25

c) The third incident was Jadwin’s fighting with the radiologists and calling them incompetent. According to Dr. Ragland, Jadwin was wrong because the procedurist (the radiologist) should chose the equipment he uses (gauge of needle is an example) as that is who is performing the task.

pg. 94:16 95:15 and 155:2156:13

d) The fourth incident was Jadwin hijacking the presentation at the October 2005 oncology conference.

pgs. 106: 18-109: 14 and 156:14-25

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland’s retaliatory animus against Plaintiff is so extreme, it approaches hatred. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland had no hesitation launching more severe retaliatory attacks against Plaintiff. Ragland’s retaliatory animus against Plaintiff is so extreme, it approaches hatred. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland spoliated the emails referenced here and testified he was never contacted by anybody with instructions not to spoliate or to produce documents responsive to Plaintiff’s discovery requests.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. The radiologists, Ragland and Abraham numerous times aired their suspicions that the Pathology department was incompetent. According to Abraham, that is what led up to the retention of David Lieu to conduct an outside review. See evidentiary objections.

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland was not even in attendance.

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144. Dr. Ragland observed an incident involving Dr. Shertukde wherein Jadwin intimidated her into giving the answer he wanted and then he dismissed her from the room.

Ragland Depo., 8/22/08, pg. 110:717

145. Watson describes how Jadwin’s disruptive misconduct was discussed at several JCC meetings.

Watson Depo., 8/25/08, pg. 13:316

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146. Watson testified to his impression of Jadwin’s involvement with KMC management regarding whether to remove him as chair, etc. He felt that Peter Bryan had made a lot of effort to engage Jadwin but that Jadwin was unresponsive.

Watson Depo., 8/25/08, pg. 32:6-1 0

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See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Disputed: Shertukde never submitted a single complaint against Plaintiff because “there wasn’t any reason for me to submit any complaint”. [Lee Opp. Decl., Exh. 52 (Shertukde depo. at 25:1-9)]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. These accounts were being provided by Bryan who had retaliatory animus against Plaintiff. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 13:8-16)]. Watson testified he has never even met Plaintiff, much less heard Plaintiff’s side of the story.[Id. at 10:5-13]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Watson testified he has never even met Plaintiff, much less heard Plaintiff’s side of the story. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 10:5-13)].

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147. Letter to Dr. Ko1b from DFJ00243 Jadwin, dated 11/22/03, -245 complaining about the situation at KMC. Jadwin asserted the following: 1) offense at Dr. Kolb’s counseling of Jadwin that his leadership style needs to be kinder and gentler; 2) distress at the criticisms he received from Drs. Ragland and Abraham at a Wednesday meeting; 3) blame for the schism between pathology and radiology over FNA was on the radiologists; 4) personally unaware of any inappropriate interpersonal relations involving himself; 5) hoped to be recognized by others at KMC as one of the best physicians and directors there; and 6) any complaints about him were “irresponsible attempts by a few inadequate individuals.”

See evidentiary objections.

148. E-mail to Dr. Kercher from Jadwin, dated 2/1/05, requesting Dr. Abraham be removed from the FNA Committee because she wasn’t (by implication) honest, objective or impartial.

DFJ00316

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Plaintiff had grounds for this concern. Even after Dr. Lieu reviewed 200 of Plaintiff’s cases and issued a report exonerating Plaintiff, Abraham testified at her deposition that she still harbored suspicions about Plaintiff’s competence afterwards. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 56:16-22)].

149. E-mail from Dr. Kercher to Jadwin, dated 2/1/05, telling Jadwin that he was not acting like a team member.

DFJ00317

See evidentiary objections.

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance just one month after this letter and 3 years into Plaintiff’s tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: For sake of economy, see Plaintiff’s Response to DMF 133.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Kercher did not lift a finger to address the numerous patient care and noncompliance concerns Plaintiff was reporting to him, showing his hostility to whistleblowers.

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150. E-mail to Peter Bryan DFJ00319 from Jadwin, dated 2/2/05, -320 listing his suggestions for improvement on the FNA issue. Jadwin also states that the radiology department was “substantially at fault” for the conflict between the departments. He requested a formal apology from the radiology department to himself and the pathology department. He also requested (in bold lettering) a public announcement at the next MEC meeting that there are no quality issues involving the pathology department and Drs. Amin, Abraham, Munoz and Naderi should be forced to stand at the podium during the announcement.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Plaintiff requested his name be cleared of the radiologists’ accusations of incompetence after Dr. Lieu’s outside report exonerated him. That never happened. As Abraham’s testimony showed, even to this day, Plaintiff’s competence remains in question. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 56:16-22)].

151. Exchange of e-mails between Dr. Ragland and Jadwin, dated 2/25/05, in which Jadwin complains about some comments made by the radiologists at the February QM meeting and informing Dr. Ragland to be prepared for Jadwin to request him to call for supporting documentation from radiology or announce that the previous comments were unsupported. Dr. Ragland shot back his displeasure at the continuing conflict between radiology and pathology, and stated that his committee will not become a battleground for this conflict.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176.

DFJ00353 -354

Ragland admitted in depo that the FNA concerns Plaintiff had raised were not just a communication issue but a valid “patient care issue” and that he had always known that even from the beginning. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 361:3-18)]. Yet here he is minimizing the issue as “battling doctors” in retaliatory fashion.

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152. E-mail to Peter Bryan and Dr. Kercher from Jadwin, dated 2/28/05, forwarding Dr. Ragland’s email of 2/25/05 and asserting that because of spelling, grammar, and syntax errors in it that Dr. Ragland may be an “impaired physician” with a “level of intellectual functioning well below the high school graduate level” and thought processes that are “chaotic and almost incoherent.” Jadwin alleges that Dr. Ragland may have a substance abuse, emotional and/or cognitive function disorder, and suggests monitored drug testing and that Dr. Ragland’s patient care duties be monitored as well.

DFJ00355

Disputed: Plaintiff was making a confidential report of genuine concern regarding Ragland to Bryan and Kercher. He expected it to be kept confidential. [Lee Opp. Decl., Exh. 53 (Jadwin Depo. at 618:8-9; 622:21-623:4; 621: 1417)]. They had a duty to keep the report confidential. Instead, the report was leaked to Ragland, leading to predictable escalation of animosity just prior to the October Conference. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 332:9-21; 333:11-17; 334:2-8)]. Amazingly, Bryan and Kercher then turned around and chided Plaintiff for not getting along better with Ragland.

a) Dr. Ragland heard about the e-mail although he never saw it. He heard that the email was turned over to Dr. Yoo, head of psychiatry. He also heard that Jadwin had contacted the licensing board about him with this same accusation.

Ragland Depo., 8/22/08, pgs. 332:4337:2

See evidentiary objections.

b) Letter to Dr. Ragland from Jadwin, dated 10/19/05, apologizing for past wrongs, although he asserts that he does not know how Dr. Ragland came to dislike him. The irony is that Jadwin’s letter contains many spelling and grammatical mistakes and a Freudian slip” .. and I have never treated you and your patients exceptionally well ..”

[Compare to DFJ00355 above] DFJ00592

See evidentiary objections.

Disputed:

Disputed: For sake of economy, see Plaintiff’s Response to DMF 152. Plaintiff testified that he acted out of genuine concern, and he submitted it confidentially. This letter proves nothing.

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153. Letter to Dr. Sergio Perticucci from Jadwin, dated 3/3/05, complaining about Dr. Perticucci’s complaints about the pathology department. In particular, Jadwin attempted to assert that an original diagnosis of “atypical metaplasia” was merely a transcription error because the diagnosis should have been “atypical hyperplasia.” Jadwin also called the diagnosis rendered on the same case by Dr. Felix of use “nebulous.” Jadwin called Dr. Perticucci dishonest and demanded an apology.

DFJ00356 ~357

See evidentiary objections.

154. E-mail to Dr. Kercher from Jadwin, dated 6/7/05, complaining about Dr. Abraham’s conduct at an MEC meeting and accusing her of an “inappropriate personality defect.”

DFJ00427

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Kercher was quick to criticize Plaintiff, but looked the other way when Abraham attacked Plaintiff in public.

155. E-mail to Dr. Kercher from Jadwin, dated 6/27/05, demanding that Dr. Abraham publicly apologize to Jadwin at the next MEC meeting.

DFJ00436

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Abraham harbored retaliatory animus against Plaintiff for pointing out that the radiologists were not receptive to addressing the FNA problem. She testified that she still questions Plaintiff’s competence to this day, despite all the contrary evidence.

156. Letter to Dr. Roy from Jadwin, dated 2/10/06, demanding apology “meeting my specifications” if alleged (pathology department) deficiencies are not received in 14 days.

DFJ00738

See evidentiary objections.

18 19

Filed 12/01/2008

Disputed: As Plaintiff testified, when he approached Perticucci after sending him the letter, he explained why he was upset and Perticucci apologized to him. [Lee Opp. Decl., Exh. 53 (Jadwin Depo. at 650:13-20)].

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Roy’s letter of dissatisfaction of 10/13/05 issued to Harris at the October Conference went beyond the scope of the October Conference and devolved into baseless personal attacks on Plaintiff. [Weiss Decl., Exh. 1 at pp. 7-8]. Dr. Weiss, Plaintiff’s expert, noted how KMC was quick to upbraid Plaintiff for being slightly critical of anyone, but refused to discipline anyone who launched attacks against Plaintiff like Roy’s letters, and in fact upbraided Plaintiff further when he tried to defend himself. [Id. at p. 6].

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157. Memorandum from Peter Bryan to Jadwin, dated 2/21/06, chastising Jadwin for the tone of voice he used in his letter to Dr. Roy of 2/10/06 and stating that “this method.. exemplifies why it is becoming increasingly difficult for you to work with key members of the medical staff.”

DFJ00740 -741; Bryan Depo., 8/14/08, pgs. 137:1144:9

See evidentiary objections.

158. Email to Peter Bryan from Jadwin, dated 2/23/06, following the meeting of 2/22/06 urging Bryan to take the moral high ground and called Drs. Ragland and Abraham “disgruntled, vindictive individuals.”

DFJ00744 -745

Undisputed that the document says what it says.

159. Exchange of e-mails with Peter Bryan from Jadwin, dated 3/24/06, 3/27/06, 4/5/06, criticizing Karen Barnes for insisting on vicarious liability of staffing agency before placing a temporary pathologist. Also, Jadwin postponed his own surgery indefinitely because his mother was ill.

DFJ00783

Disputed: As is apparent from the email of 3/24/06, Plaintiff was protesting the delay in getting temporary help hired to assist his department during his medical leave. Plaintiff’s expert, Regina Levison, stated in her report: “According to the documents I read and my conversations with Dr. Jadwin, it is my opinion that Kern County could have arranged for locum tenens coverage for the Pathology Department at Kern Medical Center much more quickly than they did. Kern County could have contacted several other locum tenens firms if they were not able to reach contractual agreement with CompHealth or any other companies in a reasonable amount of time…Over the past 10-15 years, I have seen it become more common for organizations needing locum tenens coverage to place the request with several locum tenens search firms simultaneously. If Kern County had followed this practice, there would have been several firms working to fill the Pathology Department's need for locum tenens coverage. Kern County would not have been liable to pay every firm for recruiting for a Pathologist locum tenens, only the firm that found the Pathologist that took the assignment”. [Declaration of Regina Levison (Doc. 268) (“Levison Decl.”), Exh. 1 at Section 5 on p.8].

Disputed: For sake of economy, see Plaintiff’s Response to DMF 156.

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Document 282

160. Memo from Peter Bryan to Jadwin, dated 4/17/06, telling him that he must either work on improving his relationships with staff or step down as chairman of pathology department. Bryan states “You have made many derogatory comments about some of the staff members” and “this apparent lack of insight on your part is at the heart of your inability to meaningfully contribute as a member of the medical staff leadership group.” In Bryan’s Depo., he distinguished between the department running well on a technical level (which he notes in this memo) and Jadwin’s deficiencies as department chair

DFJ00794 -795; Bryan Depo., 8/14/08, pgs. 231:9237:25; pgs. 233:2-17 and 237:2-11

See evidentiary objections.

161. E-mail from Peter Bryan to Jadwin, dated 4/17/06, responding to an email from Jadwin in which Jadwin pushes an issue of “pathology informatics.” Bryan’s response was stem, “I clearly indicated to you that your proposed solution of a free standing system for pathology was not going to happen. I have repeated this to you many times .. “

0001581

See evidentiary objections:

13 14 15 16 17 18 19 20

Filed 12/01/2008

Page 68 of 115

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 156, 176. In that same letter, Bryan stated: “Yes, the Department of Pathology continues to function well, as it has for many years, and, yes, you have made many positive changes to the department” [Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified that, as of April 28, 2006, “actual functioning of the department of [pathology] actually was fairly good”. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).]. Bryan also testified that if there were any complaints about Plaintiff they would have “bubbled” up to him as CEO, but that was not the case as of 4/17/06. [Lee Opp. Decl., Exh. 2 (Bryan Depo. at 333:18-334:9)]. At the same time, Bryan wrote to the DHS re: Plaintiff’s demotion: “Quality of care issues was not the basis for making this decision. To the contrary, Dr. Jadwin has been on an extended leave of absence from the hospital and there was a need to provide consistent administrative leadership within the department.” [Lee Decl., Exh. 19 at 0001619)].

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

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162. Jadwin wanted to delete the “Complete Blood Count” from the laboratory’s test menu and only offer the “Complete Blood Count with Differential.” Gilbert Martinez believed Jadwin’s idea would pose a compliance issue so Martinez took the matter to the Compliance Committee. Both options stayed on the test menu. Martinez felt that Jadwin was being uncooperative in this incident.

Martinez See evidentiary objections: Depo., 4/16/08, pgs. 121:17122 Irrelevant to excusing Defendants’ liability under any of : 19 Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

163. Gilbert Martinez described an incident an unannounced inspection occurred and Jadwin was not present. Martinez proceeded to show the inspectors around the laboratory. Jadwin returned, became upset when he discovered the inspectors were there, stated that the inspection had been mishandled, and then said that if Jadwin had a gun, he would shoot someone. Jadwin never apologized to him for making the remark. The incident happened sometime before 2005.

Martinez Depo., 4/16/08, pgs. 127:22130:3

164. Dr. Dutt believed that Jadwin tried to retaliate against Dr. Taylor who is married to Dr. Abraham. Jadwin’s dislike of Dr. Abraham is well-known. For instance, Jadwin refused to make the obvious diagnosis on one of Dr. Taylor’s cases.

Dutt Depo., 8/20/08 pgs. 291:7292: 11

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Martinez also testified that he did not interpret the comment to mean that Plaintiff was physically threatening him or anyone else. [Lee Decl., Exh. 8 (Martinez Depo. at 128:19-129:7; 130:4-11)]. Martinez testified that he didn’t file a police complaint or a workplace violent or any other complaint – instead he dismissed it as a stray remark. [Ibid.]. See evidentiary objections.

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165. Dr. Dutt reported to Dr. Harris complaints by Dr. Shertukde that Jadwin was angry and hostile toward her. Dutt did so because he was afraid that Dr. Shertukde or Vangie Gallegos would file a case against the County for harassment or hostile work environment based on Jadwin’s behavior.

Document 282

Dutt Depo., 8/20/08, pgs. 298:23300:24

See evidentiary objections.

Abraham Depo., 8/18/08, pgs. 198:24207: 17

See evidentiary objections.

166. Dr. Abraham recalled how Jadwin insulted her and how he had insulted Dr. Ragland and, in general, that he managed to insult everyone who was there but she did not remember specific statements beyond those directed at her and Dr. Ragland.

16

18 19 20 21

Harris testified that he sincerely apologized to Plaintiff after the meeting. [Lee Opp. Decl., Exh. 24 (Harris Depo. at 199:1-6)]. He also testified that negative things were said to Plaintiff at the meeting as well. [Id. at 232:19-21]. Kercher was asked if he apologized to Plaintiff at the meeting, and he responded “I apologize all the time, sir…I do it all the time.” [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo. at 93:19-24)].

Plaintiff denied insulting anyone at the meeting. [Lee Opp. Decl., Exh. 55 (Jadwin Depo. at 222:14-223:7; 223:15-17). He also confirmed that Harris and Kercher had both apologized to him after the meeting. [Lee Opp. Decl., Exh. 4 (Jadwin Depo. at 290:16-19)].

22 23

26

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 156, 176.

Kercher also testified, “I don’t ever remember David specifically treating me in a sassy, mean, horrible way…I mean, he was always nice to me.” [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo at 32:9-13)]. Bryan testified that Plaintiff did not insult him at the meeting. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 110:11-13)]. Abraham testified that Plaintiff called her a “fat doctor” but Kercher testified “I don’t recall that comment any time”. [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo at 92:24-93:1)].

17

25

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Meeting on February 22, 2006

15

24

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167. Jadwin insulted, literally, everyone at the meeting face-to-face.

Bryan Depo., 8/14/08, pgs. 109: 12-111:10

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

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5 6 7 8 9 10 11 12

Bryan Depo., 8/14/08, pgs. 156:22157:12

See evidentiary objections.

169. Jadwin made attacking statements and charges at attendees of 2/22/06 meeting.

Harris Depo., 8/13/08, pg. 159:213

See evidentiary objections.

170. Jadwin insulted Dr. Ragland severely at the 2/22/06 meeting.

Harris Depo., 8113/08, pg. 196:720

See evidentiary objections.

171. Jadwin insulted all of the doctors at the meeting, including Dr. Harris.

Harris Depo., 8/13/08 pgs. 230:4232: 13

See evidentiary objections.

172. Harris refused to characterize Jadwin’s behavior as crazy but he did offer “excessive” as a description and agreed with Eugene Lee’s adjectives of “unprofessional” and “unreasonable.” Harris said it was the most unprofessional, unreasonable, excessive behavior he has ever seen in a physician.

Harris Depo., 8113/08, pgs. 234:24235: 23 and 305:20308: 22

See evidentiary objections.

173. The first incident of Jadwin’s inappropriate conduct was when Jadwin, during this meeting, said Dr. Ragland was incompetent and shouldn’t be the medical staff president.

Ragland Depo., 8/22/08, pg. 16:1216

See evidentiary objections.

13 14 15 16 17 18 19 20 21 22 23 24

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168. Bryan thanked Dr. Ragland for showing restraint in the face of Jadwin’s insults.

3 4

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For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra. For sake of economy, see Plaintiff’s Responses to DMF 176 supra. Harris’s pretext is belied by his memos to file regarding Mansour and the many formal and informal complaints submitted against him. To date, Mansour was not subjected to administrative leave or nonrenewal as Plaintiff was.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

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174. E-mail from Dr. 0000507 Ragland to Peter Bryan, dated 2/23/06, stating that the meeting with Jadwin on 2/22/06 was “one of the most distasteful events I have ever participated in.”

Filed 12/01/2008

Page 72 of 115

Disputed: Defendants are quoting out of context. In that email exchange, Ragland specifically expressed his disdain for Plaintiff’s whistleblowing efforts: “that was one of the most distasteful event I have ever participated in [Plaintiff] has fixed his department so now he is going to fix us?” [Lee Decl., Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)]. Bryan made no bones about indicating that his allegiance lay with Ragland, Harris, Abraham and Kercher: “I know it was really challenging to remain cordial and not combative [with Plaintiff], and goodness a couple of you could have really hit back”, even as he portrayed himself as an impartial adjudicator to Plaintiff. [Ibid.].

5 6 7 8 9 10 11 12 13 14 15 16

Demotion to Staff Pathologist 175. Pathology Dept. Proctoring Report on Dr. Dutt, dated 1/l8/06, and completed by Jadwin who said that Dr. Dutt’s performance is “responsible and excellent.”

0000903 913

See evidentiary objections. Disputed: Plaintiff issued this proctoring report just a few months after Dutt’s hire. Plaintiff was able to form a fuller, and very different, opinion of Dutt’s performance as a pathologist after further opportunity to work closely with him. Plaintiff formed the opinion over time that Dutt was a weak pathologist. [Jadwin Opp. Decl., para. 9].

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176. Exchange of e-mails between Dr. Dutt and Jadwin, dated 11/6/06, regarding a container of specimen left sitting out. To remedy the situation, Dr. Dutt instructed that only Evangeline “Vangie” Gallegos was to process the placentas.

Document 282

DFJ01430

Filed 12/01/2008

Page 73 of 115

Disputed: For sake of economy, Plaintiff’s Response to DMF 112 is incorporated in its entirety herein. Disputed: This is pretext for retaliatory motive and disparate treatment of Plaintiff. Dr. Mansour, an OBGYN core physician, is a direct comparator to Plaintiff after his demotion – both reported to respective department chairs at KMC. Mansour was the subject of a staggering number of serious complaints of disruptive behavior from 5/10/2006 to 4/12/2007. Yet, he was not put on administrative leave or subjected to nonrenewal. Harris reported in numerous memos to file that: 1) Mansour had used an “angry and raised voice” at him. [Lee Opp. Decl., Exh. 34 (Harris memos to file, Exh. 736 at Bates 0027083)]; 2) Roy went to Harris to “complain about abuses by Dr. Mansour” including “ridicule and criticism” and threatened to leave KMC [Id. at Exh. 740 at Bates 0027094]; 3) Harris concluded “the comments made by Dr. Mansour [about Roy] were unprofessional, inappropriate, and of malicious intent.” [Id. at Exh. 740 at Bates 0027094]; 4) Harris counseled Mansour “on the spot” regarding his inappropriate criticism of nursing staff in front of residents - [Id. at Exh. 742 at Bates 0027097]; 5) Harris noted that Mansour’s actions were so egregious to the “NRP Team” and medical staff officers that Ragland and Jose Perez contemplated suspending him, “if for no other reason than for ‘possible assault’ on the respiratory therapist.” [Id. at Exh. 746 at Bates 0027102]; 6) Harris noted that he remained skeptical of Mansour’s ability to “communicate constructively and to engender the support of others with whom he works”. [Id. at Exh. 746 at Bates 0027103]; 7) Harris faulted Mansour’s “communication style” as not contributing to a “communicative, helpful, collegial, and effective environment at the hospital”. [Id. at Exh. 746 at Bates 0027104]; 8) Harris noted that only once or twice had his blood pressure “gotten up” at KMC but that Mansour had become “truly exasperating” and that Mansour “can never be legitimately criticized, because anyone who would criticize him would have to be out to get him”. [Id. at Exh. 746 at Bates 0027104]; 9) Harris noted that he and Culberson presented to Mansour five complaints of quality concerns and one patient complaint. [Id. at Exh. 747 at Bates 0027105]; 10) Mansour responded that “all of this is a remnant of Peter Bryan. It was Mansour who got rid of Peter Bryan”. [Id. at Exh. 747 at Bates 0027106]; 11) Harris noted a complaint that Mansour had improperly thrown surgical instruments. [Id. at Exh. 749 at Bates 0027109]. Disputed: Plaintiff disputes this hearsay account reported by Dutt. [Jadwin Opp. Decl., para. 10]. See evidentiary objections.

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7 8

See evidentiary objections.

9

Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 11].

2 3 4 5

0000824

Filed 12/01/2008

Disputed: Dutt himself was the target of complaints within the Pathology department. Yet he was not subjected to disciplinary action. As late as 2/6/07, Harris noted in his memos to file that Dutt himself had not “embraced the broad support of the pathology department and lab” and has been the target of complaints from other medical staff members in the pathology department. Harris decided Dutt should not be promoted from Acting to full Chair of Pathology until he could demonstrate “those administrative demeanors desired of a Chair under conditions of lower environmental stress.” [Lee Opp. Decl., Exh. 34 (Harris memos to file, Exh. 745 at Bates 0027100-27101].

1

177. E-mail from Evangeline “Vangie” Gallegos to Dr. Dutt, dated 11/6/06, thanking him for his support and complaining about Jadwin interfering in her work area and “creating more work for everybody.” She asked if she could go home early as she was feeling sick.

Document 282

6

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

178. Exchange of e-mails between Dr. Dutt and Jadwin, dated 11/13/06 and 11/14/06, wherein Jadwin requested that he have an assigned assistant and that the assigned assistant be required to notify him when leaving the lab for more than 5 minutes. Dr. Dutt’s response was to deny the need for an assistant as the department had three pathologists and to remark how “demeaning and time consuming” it would be to constantly clock in and out.

DFJ01439 (0000840 841)

179. E-mail from Dr. Dutt to Jadwin, dated 11/17/06, expressing frustration with Jadwin’s reaction to counseling which is to escalate the situation, blame others, or attack others. Dr. Dutt also promised to find the records where Jadwin did not submit a “rush” case or most of his other cases that day. He also asserted that Jadwin had done this before.

DFJ01446 -01447 (0000843)

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes it would be demeaning and time consuming to have an employee clock in and out. It occurs in workplaces all across the country every day. [Jadwin Opp. Decl., para. 12].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 13].

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Document 282

180. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, discussing their disagreement on the necessity for privileges for FNA and the necessity for proctoring.

DFJ01448 (0000850)

6

181. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, reminding him of a rush case that Jadwin failed to process promptly and counseling Jadwin to remember it when criticizing others.

DFJ01449 (000085])

7 8 9 10

182. E-mail from Dr. Dutt to Jadwin, dated 12/4/06, chastising Jadwin for criticizing Dr. Shertukde’s diagnosis without consulting others first; chastising him for refusing to get outside consult on a hard case; and chastising him for failing to remove the sharps from the cutting area when he was done.

0000827

11 12 13 14 15 16 17

a) Minutes of the meeting of the pathology/histology department on 10/17/06. It was noted that Dr. Shertukde was concerned that blades were not being removed once grossing was done. She and Dr. Dutt remove and discard the blades immediately.

0000899

18 19 20 21 22

b) E-mail from Dr. Dutt to Yolanda Figueroa, dated 12/7/06, acknowledging her report that Jadwin had left two long blades and a scalpel out after he was finished.

0000862

23 24 25

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For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 14].

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For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 15]. For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 16].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 16]. For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. Disputed: Figueroa disputes this hearsay account reported by Dutt. [Jadwin Opp. Decl., para. 6]. See evidentiary objections.

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183. E-mail from Dr. Dutt to Jadwin, dated 12/5/06, regarding Jadwin’s uncooperativeness with him and general failure to adhere to a chain of command.

DFJ01465 (0000856)

6

184. E-mails between Dr. Dutt and Jadwin, dated 12/6/06, arguing over a criticism Jadwin made of a diagnosis that Dr. Shertukde did and involving alleged defamatory and retaliatory statements made by Jadwin. Dr. Dutt tells Jadwin that people are afraid of him because of his hostility and that it is Jadwin’s fault for how he treats others.

DFJ01476 -1478 (0000857858)

7 8 9 10 11 12 13

185. E-mail from Dr. Dutt to David Culberson, dated 12/6/06, stating that he had counseled Jadwin for not sending out a case for consultation that, in fact, turned out to be a missed endometrial cancer and now Jadwin was pushing a lot of cases out for consultation, burdening the staffs time and budget.

0001466

14 15 16 17 18 19

186. E-mail from Dr. Dutt to Jadwin, dated 12/7/06, chastising him for commanding Yolanda to treat the placentas when in his e-mail of 11/6/06 (0000825 above) specifically said that only Vangie was to work with placentas.

0000863

20 21 22 23 24

187. Jadwin was uncooperative after returning from leave. He was asked specifically to resume doing the blood bank reviews and he did not do them.

Dutt Depo., 8/20/08, pg. 284:25285:5

25 26 27 28

Page 76 of 115

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 17].

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Filed 12/01/2008

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 18].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 19].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. Disputed: Figueroa disputes this hearsay account reported by Dutt. [Jadwin Opp. Decl., para. 20]. See evidentiary objections. For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 21].

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188. Dr. Dutt, acting Chair of the Pathology Department had concerns that Jadwin was creating a hostile work environment. This prompted meetings with Dr. Perez, David Culberson, and Dr. Harris.

Dutt Depo., 8/20/08, pgs. 286:6289: 1; 290:14-20

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein.

189. Dr. Dutt would try to counsel Jadwin one-on-one but Jadwin would avoid the conversation. He would make an excuse to leave the room or leave the hospital. Because Jadwin made it difficult for Dr. Dutt to talk to him, Dr. Dutt had no alternative but to send his concerns about Jadwin’s work to the Peer Review Committee.

Dutt Depo., 8/20/08, pgs.296:2 0-297:13

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein.

190. E-mail to Dr. Dutt from Jadwin, dated 12/6/06, with copies to David Culberson, Dr. Harris and Karen Barnes, alleging that he has been “singled out for nontransparent ‘PCC r review’” as well as personal attacks, and he requests the KMC administration to initiate a formal review.

DFJ01479 -1480

See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 22].

See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 23].

Undisputed.

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Π’S MATERIAL FACTS (“PMF”)

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3 A. INTRODUCTION

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5 Plaintiff is the former Chief of Pathology at Kern Medical Center (“KMC” or “the hospital”), an acute care teaching hospital and health care facility that is owned and operated by Defendant County of Kern (“Defendant County” or “the County”).

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Π’S SOURCE

Supplemental Decl. of Eugene Lee in Support of Plaintiff’s Motion for Summary Judgment (“Lee Supp. Decl.”, Doc. 267), Exh. 19 (Scheduling Order (“SCO”) at 8:2-4); Exh. 20 (RFA No. 18 at 5:7-10, RFA No. 19 at 13-15; RFA No. 24 at 6:7-10).

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7 B. STATEMENT OF FACTS 8 In October 2000, Dr. Jadwin began full-time employment at KMC as chair of the pathology department. Plaintiff was an employee of Defendant County from October 24, 2000 to October 4, 2007.

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Lee Supp. Decl. (Doc. 267), Exh. 19 (Scheduling Order (“SCO”) at 8:2-4), Decl. of Eugene Lee in Support of Plaintiff’s Motion for Summary Judgment (“Lee Decl.”, Doc. 266) Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) on DFJ1416)

9 Throughout the course of his employment at KMC, Dr. Jadwin tried to ensure that patient care was based on adequate and accurate pathology.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan’s Letter to Supervisors of 1/17/06 at No. 10 on 0001567)

10 In May 2005, Dr. Jadwin began formally expressing his concerns that KMC was not complying with state regulations regarding blood transfusion documentation.

Decl. of David F. Jadwin in Support of Plaintiff’s Motion for Summary Judgment (“Jadwin Decl.” Doc. 265), Exh. 2 (Jadwin Email to RamosAninion of 5/19/05 at DFJ00407)

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11 In October 2005, Dr. Jadwin presented at an intra-hospital conference where he reported on uncaught pathology report errors that potentially jeopardized the care of a hysterectomy patient and the need for a policy to address the problem.

Jadwin Decl. (Doc. 265), Exh. 2 (Presentation at DFJ481-484, 494-495)

12 Defendants responded by calling him into a meeting, severely reprimanding him, and informing him that letters of reprimand would be placed in his physician credentials file.

Lee Decl. (Doc. 266), Exh. 4 (Taylor Letter to Harris of 10/12/05 at DFJ00580); Exh. 5 (McBride Letter to Harris of 10/12/055 at DFJ00581); Exh. 6 (Roy Letter to Harris of 10/12/05 at DFJ00583); Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588))

13 Defendants’ retaliatory conduct exacerbated Dr. Jadwin’s chronic depression and proved so disabling that, at the end of 2005, he was forced to take a reduced work schedule medical leave as an accommodation and seek psychiatric therapy.

Lee Decl. (Doc. 266) Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001140); Decl. of Paul Riskin, M.D. Authenticating Documents (“Riskin Decl.”, Doc. 270) (Certification of 1/13/06 at DFJ1810); Lee Supp. Decl. (Doc. 267), Exh. 8 (Jadwin Depo. at 495:2-496:20)

14 In April 2006, Dr. Jadwin requested an extension of his reduced work schedule leave.

Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)

15 On April 28, 2006, Defendant Bryan responded by placing him on full-time “personal necessity leave” under the County’s leave policy and, a few months later, ordered him not to contact anybody at KMC or he would be fired (“Forced FT Leave”).

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 36, 27:1-4); Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ011551159, DFJ01164); Lee Decl. (Doc. 266), Exh. 16 (Nunn’s Cover Email to Jadwin of 6/26/06 at DFJ01346)

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16 On June 14, 2006, Defendant Bryan told Dr. Jadwin that he had decided to “rescind your appointment as chairman” and that “This decision is effective June 17, 2006”.

Lee Decl. (Doc. 266), Exh. 15 (Bryan’s Letter to Jadwin of 6/14/06 at DFJ01181)

17 On July 10, 2006, Defendant Bryan recommended to KMC’s Joint Conference Committee (“JCC”) that Plaintiff be removed from his position as Chair of the pathology department “based on Dr. Jadwin’s unavailability for service because of extended medical leaves for non-work related ailments” and “solely based on his continued nonavailability to provide the leadership necessary for a contributing member of the medical staff leadership group..Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chair. Other than his latest written communication requesting an extension of his medical leave, Dr. Jadwin has made no attempt in the last two months to contact me concerning his employment status or how the Department of Pathology should be managed during his absence”.

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476-77); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 37 at 51:20-23); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 37, 27:9-11)

18 At a meeting of the JCC on July 10, 2006, Defendant County approved the demotion of Plaintiff from chair of the pathology department for “unavailability”. Members of the JCC based their vote on his unavailability due in part to his medical leave.

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/10/06 at 0009819-21); Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476-77)

19 Defendant County then conditioned Dr. Jadwin’s return to work as a regular pathologist on his medical release to full time work and entry into an amendment to his contract that contained restrictive terms and conditions and reduced Dr. Jadwin’s base pay from roughly $300,000 to $200,000.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog1 No. 33 at 50:16-26; Rog1 Nos. 38-41 at 51:26-52:23); Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) & (f) on DFJ1416, (i) on DFJ1417, & DFJ1420 at “Assignments”)

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20 When demoting Dr. Jadwin, Defendants Bryan and the County did not notify Dr. Jadwin of the hospital committee vote to demote him or give him a chance to defend himself prior to, at or after the vote.

Jadwin Decl. (Doc. 265), para 9)

21 On his return to work as a demoted pathologist in late 2006, Dr. Jadwin was placed beneath a former subordinate whom he had hired and trained the year before.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 9:10-11); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 10, 4:10-11)

22 After about two months, Dr. Jadwin decided to go outside the hospital and report his ongoing suspicions of legal noncompliance and illegal and/or unsafe care and conditions of patients at KMC to regulatory and accreditation agencies, as well as KMC senior management.

Jadwin Decl. (Doc. 265), Exh. 8 (JCAHO’s Email to Jadwin of 11/29/06 at DFJ01454); Exh. 9 (DHS Letter to Jadwin of 12/1/06); Exh. 12 (Jadwin Decl. (Doc. 265), Exh. 12 (Jadwin’s Email to CAP of 1/15/07 at DFJ02463-DFJ02499)

23 Plaintiff also complained to KMC’s senior management about the harsh treatment he was receiving.

Jadwin Decl. (Doc. 265), Exh. 11 (Jadwin Email to Culberson of 12/13/06 at DFJ01488-DFJ1491)

24 The following day, on December 7, 2006, Defendant County placed Dr. Jadwin on administrative leave “pending resolution of a personnel matter.”

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog1 No. 42 at 52:24-53:1); Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

25 The leave denied Plaintiff the opportunity to earn patientbased professional fees, which had amounted to roughly $100,000 per year (“Professional Fees”) prior to his taking of reduced work schedule leave.

Decl. of Stephanie Rizzardi in Support of Plaintiff’s Motion for Summary Judgment (“Rizzardi Decl.”, Doc. 271), Exh. 1, Table 7; Jadwin Decl. para 14

26 Dr. Jadwin formally notified KMC of his whistle-blowing reports to the outside regulatory and accreditation agencies.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin Letter to Culberson of 12/6/06 at DFJ01488-91)

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27 Dr. Jadwin remained on administrative leave for another ten Lee Decl. (Doc. 266), Exh. 22 months until his contract expired on October 4, 2007. (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) on DFJ1416); Jadwin Decl. para 12 28 During six of those months, Dr. Jadwin was physically restricted to his home during work hours.

Lee Supp. Decl. (Doc. 267), Exh. 5 (Wasser Letter to Lee of 4/30/07 at DFJ01701)

29 The county decided not to renew Dr. Jadwin’s contract, which expired on October 4, 2007.

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4);Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at Recital (a))

30 From October 2000 to the present, KMC – a hospital with roughly 60 full-time faculty physicians – had failed to renew the contract of only 1 other KMC physician.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21)

31 Plaintiff’s position had been that of a permanent, core physician, whose contracts are customarily renewed.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 39:6-8); Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, p.1); Jadwin Decl. para 7

32 Defendant County based its nonrenewal decision on Dr. Jadwin’s medical and recuperative leave, and the fact he had brought a lawsuit opposing employment practices prohibited by the Family & Medical Leave Act (“FMLA”), the California Family Rights Act (“CFRA”), and the Fair Employment & Housing Act (“FEHA”).

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476-77)

33 To this day, Dr. Jadwin has not personally received an explanation from Defendants as to why he was placed on administrative leave or why his contract was not renewed, despite repeated requests for an explanation. Defendants never notified Dr. Jadwin of the charges against him or permitted him to defend himself.

Jadwin Decl. (Doc. 265), para 13

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35 B. THRESHOLD ISSUES

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Lee Supp. Decl. (Doc. 267), Exh. 36 During the entire tenure of Plaintiff’s employment, Defendant County was continuously an employer within the 19 (SCO at 6:25-7:3) meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t C. § 12945.2 (b)(2)], and FEHA [Gov’t C. § 12926(d)] engaged in interstate commerce, and regularly employing more than fifty employees within seventy-five miles of Plaintiff’s regular workplace at KMC.

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37 Defendant County is a government agency.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 20, 5:16-19)

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38 39 1. Threats to Plaintiff’s Credentials 40 On October 12, 2005, Defendant Harris solicited and received letters of dissatisfaction from three KMC core physicians, criticizing Dr. Jadwin’s presentation at a KMC monthly Oncology Conference.

Lee Decl. (Doc. 266), Exh. 4 (Taylor Letter to Harris of 10/12/05 at DFJ00580); Exh. 5 (McBride Letter to Harris of 10/12/055 at DFJ00581); Exh. 6 (Roy Letter to Harris of 10/12/05 at DFJ00583); Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588))

41 On October 17, 2005, KMC’s senior medical staff wrote to Dr. Jadwin notifying him that these letters of dissatisfaction would be placed in his credentialing file (“Credential Threat”).

Lee Decl. (Doc. 266), Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588)

42 Some of the medical staff involved later apologized to Dr. Jadwin.

Lee Decl. (Doc. 266), Exh. 12 (Bryan Letter to Jadwin of 4/17/06 at DFJ00794

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43 44 2. Demotion & Pay Cut

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Lee Supp. Decl. (Doc. 267), Exh. 45 Dr. Jadwin’s employment contract expressly provided that Dr. Jadwin would be chair of the KMC pathology 20 (RFA No. 243 at 49:22-27) department and paid base compensation of $287,529 (“Base Pay”).

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46 On July 10, 2006, Bryan recommended and the JCC approved Jadwin’s demotion from department chair to staff pathologist (“Demotion”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 229 at 47:4-9); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 228 at 46:27-47:1)

47 It is uncontested that Defendants considered a portion of Dr. Jadwin’s pay to be tied to his chair position, and that the demotion therefore made the paycut a foregone conclusion. The JCC vote to demote Plaintiff was effectively a vote to reduce his Base Pay as well.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 228 at 58:6-10); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 13:10-21); Lee Supp. Decl. (Doc. 267), Exh. 3 (Barnes Letter to Lee of 9/15/06 at DFJ1390); Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06 at (a) & (f) on DFJ01416, (i) on DFJ01417)

48 Defendants County and Harris informed Dr. Jadwin that his return to work at KMC was conditioned on his entry into an amendment to his employment contract, instituting a reduction in Base Pay from $287,529 to $186,687 (“Paycut”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 246 at 50:12-16)

49 On October 3, 2006, Plaintiff executed the amendment to his employment contract.

Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06 at DFJ01418)

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51 3. Administrative Leave

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52 A pathologist is valued according to the efficacy of his “eye”, i.e., the training and experience that allows him to spot minute patterns and telltale abnormalities in microscopic and gross tissue samples.

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Decl. of Regina Levison in Support of Plaintiff’s Motion for Summary Judgment (“Levison Decl.”, Doc. 268) Exh. 1 At p 6

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53 Developing and maintaining the pathologist “eye” requires years of daily pathology work; however, it takes only a few months of being away from work to lose enough efficacy to threaten a pathologist’s career.

Levison Decl. (Doc. 268), Exh. 1 At p 6

54 Moreover, Dr. Jadwin’s contract expressly provided that he was to earn patient billing-based professional fees, separate and apart from his fixed Base Pay.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157)

55 In order to earn Professional Fees, Dr. Jadwin needed to process and bill patient cases.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157 (“direct patient care”…through “an agreement for services with the County”); Jadwin Decl. para 14

56 Restriction to his workplace at KMC by placement on leave denied him the opportunity to earn such fees.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157 (“direct patient care”…through “an agreement for services with the County”)

57 Dr. Jadwin’s professional fee income amounted to approximately $100,000 per year.

Rizzardi Decl. (Doc. 271), Exh. 1, Table 7; Jadwin Decl. para 14

58 On December 7, 2006, Defendant County placed Plaintiff on paid administrative leave “pending resolution of a personnel matter” (“Admin Leave”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 252 at 51:16-20); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 42, 28:3-9); Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

59 Defendant County further ordered Plaintiff to “remain at home and available by telephone during normal business hours” and not to contact anyone at KMC, else he could be terminated. There was no further indication of what Plaintiff was being charged with, whether he would be permitted to respond to charges, or when the leave would end.

Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

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60 No investigation, explanation or resolution ensued.

Jadwin Decl. (Doc. 265), para 6

61 On April 4, 2007, Plaintiff notified Defendant County that the long leave was exacerbating his depression, eroding his pathology skills and employability, and denying him the opportunity to earn professional fees.

Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

62 On April 30, 2007, Defendant County informed Dr. Jadwin that he remained on administrative leave but removed the home restriction.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 43, 28:10-16); Lee Supp. Decl. (Doc. 267), Exh. 5 (Wasser Letter to Lee of 4/30/07 at DFJ01701)

63 On May 1, 2007, Defendant County informed Dr. Jadwin that they intended to keep Dr. Jadwin on leave and “let his contract run out”.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 43 at 53:3-9); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 44, 28:17-22); Lee Supp. Decl. (Doc. 267), Exh. 6 (Wasser Email to Lee of 5/1/07 at DFJ01705)

64 Dr. Jadwin remained on administrative leave until his employment contract expired on October, 4, 2007.

Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) on DFJ01416, (i) on DFJ01417; Jadwin Decl. (Doc. 265), para. 12

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66 4. Nonrenewal

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67 Supervisor Ray Watson, then-Chair of the Board of Supervisors, voted as a member of the JCC to demote Dr. Jadwin and effectively cut his pay, and also participated in the decision not to renew Plaintiff’s employment contract

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Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4)

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68 Ray Watson, Chair of the Board Supervisors at the time of the Nonrenewal, testified in Depo.: “My understanding was that [Plaintiff] had -- he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract.” (“Nonrenewal”).

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4)

69 Moreover, Dr. Jadwin was a “core physician” at KMC, a permanent position.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 39:6-8); Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, p.1); Jadwin Decl. para 7

70 There was a mutually explicit understanding that, as a core physician, Plaintiff’s contract would be continuously renewed.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 39:6-8); Jadwin Decl. para 7; Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21)

71 In fact, from October 2000 to present, only one other physician besides Dr. Jadwin has not had his contract renewed.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 275 at 55:22-26)

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73 D. CAUSATION

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74 Credential Threat was a substantial cause of Dr. Jadwin’s emotional distress leading to recurrence of his chronic major depressive disorder.

Decl. of Anthony Reading, Ph.D. (“Reading Decl.”, Doc. 269) Exh. 1, p. 58 - 59 at Overall Conclusions

75 Credential Threat was a substantial cause of Dr. Jadwin’s reduced work schedule medical/recuperative leave and loss of opportunity to earn Professional Fees from December 16, 2005 to on or around April 28, 2006.

Reading Decl. (Doc. 269), Exh. 1, p. 58 - 59 at Overall Conclusions; Supplemental Decl. of David F. Jadwin in Support of Plaintiff’s Motion for Summary Judgment (“Jadwin Supp. Decl.” Doc. 272) 5, 6

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76 Forced FT Leave was a substantial cause of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 59-60 at Overall Conclusions; Jadwin Supp. Decl. 6

77 Forced FT Leave was a substantial cause of Plaintiff’s loss of opportunity to earn Professional Fees as provided for in his employment contract from on or around April 28, 2006 to June 17, 2006.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, at DFJ00154, 156); Jadwin Supp. Decl. 6

78 Demotion and Paycut were substantial causes of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 58 - 59 at Overall Conclusions

79 Demotion and Paycut were substantial causes of Base Pay reduction from $287,529 to $186,687 from October 3, 2006 onward.

Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Lee Decl. (Doc. 266)); Exh. 2 (Jadwin Employment Contract of 11/12/02 at (i) on DFJ1417)

80 Demotion and Paycut were substantial causes of termination of Plaintiff’s career as a pathology department chair due to unemployability.

Levison Decl. (Doc. 268), Exh. 1 At p 6

81 Admin Leave, during 5 months of which Plaintiff was restricted full-time to his home, was a substantial cause of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 59-60 at Overall Conclusions

82 Admin Leave was a substantial cause of Plaintiff’s loss of opportunity to earn Professional Fees as provided for in his employment contract from on or around December 7, 2006 to October 4, 2007

Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (i) on DFJ1417); Jadwin Decl. (Doc. 265), para 14

83 Admin Leave was a substantial cause of loss of Plaintiff’s pathologist “eye”, causing him to become unemployable as a pathologist.

Levison Decl. (Doc. 268), Exh. 1 At p 6

84 Nonrenewal was a substantial cause of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 59-60 at Overall Conclusions

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85 Nonrenewal was a substantial cause of Plaintiff’s lost Base Pay of $186,687 and Professional Fees of roughly $100,000 per year, as provided for in his employment contract, from on or around October 4, 2007 onward.

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Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157); Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (i) on DFJ1417)

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87 E. COUNTS 2&3: DEFENDANT COUNTY’S WHISTLEBLOWER RETALIATION

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88 1. Oncology Conference 89 Dr. Jadwin made a protected report to KMC’s medical staff leadership about (a) the medical appropriateness of a radical hysterectomy for a KMC patient (Patient No. 1142693) based on inaccurate outside pathology reports – which case was the subject of Plaintiff’s presentation at the monthly KMC oncology conference held on October 12, 2005 (“October Conference”) – and (b) the unsafe conditions created for other patients by the lack of a KMC policy requiring internal pathology review of all outside pathology reports prior to treatment (“IPR”).

Jadwin Decl. (Doc. 265), Exh. 2 (Presentation at DFJ481-484, 494-495)

90 Defendant County knew of Dr. Jadwin’s whistleblowing report at the October Conference since Defendant Harris, then-CMO of KMC, and Jennifer Abraham, thenImmediate Past President, were in attendance.

Lee Decl. (Doc. 266), Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588)

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91 Each of the letters of reprimand which Defendant County decided to place into Plaintiff’s medical credential file specifically reference Dr. Jadwin’s presentation at the October Conference.

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Lee Decl. (Doc. 266), Exh. 4 (Taylor Letter to Harris of 10/12/05 at DFJ00580); Exh. 5 (McBride Letter to Harris of 10/12/055 at DFJ00581); Exh. 6 (Roy Letter to Harris of 10/12/05 at DFJ00583); Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588)

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92 93 2. PCCs 94 On January 9, 2006, Dr. Jadwin made a protected report to Bryan regarding KMC’s noncompliance with state regulations regarding blood transfusion related documentation called product chart copies (“PCCs”), jeopardizing patient safety.

Lee Decl. (Doc. 266), Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001141)

95 Improper documentation of blood transfusions creates patient risk of morbidity and mortality.

Jadwin Supp. Decl. (Doc. 272), para 3

96 Dr. Jadwin reasonably suspected that KMC’s ongoing failure to maintain accurate and complete records of patient blood transfusions did not comply with H&S § 1602.5, which requires PCC documentation to conform to AABB accreditation standards.

Jadwin Decl. (Doc. 265), Exh. 12 (Jadwin’s Email to CAP of 1/15/07 at DFJ02499); Jadwin Decl. (Doc. 265), Exh. 13 (DHS’s Fax to Jadwin of 8/11/08 at E264 on pages 2-4 (finding almost 50% noncompliance at KMC)); Jadwin Supp. Decl. (Doc. 272), Exh. 1 at DFJ793

97 During his reduced work schedule medical leave, Dr. Jadwin audited PCCs, and continued to report noncompliant incomplete or missing PCCs to Defendant Bryan, Toni Smith, KMC Nurse Executive, and Risk Management and Quality Assurance through at least April 17, 2006, when Plaintiff asked Defendant Bryan to set up a meeting with Bernard Barmann, County Counsel, to discuss his concerns regarding PCC noncompliance.

Jadwin Decl. (Doc. 265), Exh. 12 (Jadwin’s Email to CAP of 1/15/07 at both DFJ02463DFJ02499); pages in between show Dr. Jadwin’s audits of PCCs & his efforts to correct noncompliance internally); Jadwin Supp. Decl. (Doc. 272), Exh. 1 at DFJ793 (subject line states “Compliance with Regulations”)

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98 The California Department of Health Services later determined during the course of an inspection that KMC was indeed failing to comply with PCC-related regulations.

Jadwin Decl. (Doc. 265), Exh. 13 (DHS’s Fax to Jadwin of 8/11/08 at E264 on pages 2-4 (finding almost 50% noncompliance))

99 On April 17, 2006, Defendant Bryan threatened to demote Plaintiff.

Lee Decl. (Doc. 266), Exh. 12 (Bryan Letter to Jadwin of 4/17/06 at DFJ00795)

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100 101 3. Skull Flaps 102 Dr. Jadwin reasonably believed that storage of patient skull caps occurring in an unlicensed laboratory freezer at KMC violated H&S § 1635.1.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 14:2-22); Lee Supp. Decl. (Doc. 267), Exh. 12 (Dutt Depo at 244:6-9)

103 Unlicensed skull flap storage could give rise to a risk of patient morbidity or mortality.

Jadwin Decl. (Doc. 265), at para 15

104 Gilbert Martinez, the Manager of Laboratory Services at KMC (“Martinez”) confirmed that there were typically seven to nine skull flaps being stored in the lunlicensed aboratory freezer.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo At 10:2-7, 16:6-21)

105 At times, upwards of 15 to 20 skull flaps were being stored in KMC’s unlicensed freezer.

Lee Supp. Decl. (Doc. 267), Exh. 12 (Dutt Depo at 244:6-9)

106 Martinez shared Plaintiff’s concerns about unlicensed skull flap storage in the laboratory freezer.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo 14:2-12)

107 When Dr. Jadwin discovered skull flaps being illegally stored in the laboratory freezer, he discussed the problem with Gilbert Martinez, the Manager of Laboratory Services at KMC (“Martinez”).

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo 14:2-22)

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108 Around Thanksgiving 2006, Dr. Jadwin tipped Martinez off that he intended to blow the whistle about his unresolved complaints about unsafe patient care and conditions, including unlicensed skull flap storage, and that inspections of KMC by regulatory and accreditation agencies was likely.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 111:12112:4)

109 Within a few days, Martinez relayed this information to his supervisor, David Hill, the Director of Ambulatory Care; who in turn relayed it to a pathologist, Philip Dutt, and/or Defendant Harris.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 113:8114:23)

110 Beginning November 28, 2006, Dr. Jadwin formally reported his suspicions of illegal and/or unsafe care and conditions of patients at KMC – including unlicensed skull flap storage, noncompliant PCCs, and an inappropriate radical prostatectomy (see below) – to the Joint Commission on Accreditation of Hospital Organizations (“JCAHO”), the College of American Pathologists (“CAP”), and the California Department of Health Services (“DHS”). (“Outside WB Reports”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 35 at 8:10-14); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 21 at 5:22-24 (DHS)); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 22 at 5:25-6:2 (JCAHO); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 23 at 6:3-6 (CAP))

111 On January 4, 2007, Dr. Dutt received confirmation that Dr. Jadwin had in fact complained to CAP about the unlicensed tissue storage and noncompliant PCCs, and shared this with then-CEO Mr. Culberson.

Jadwin Supp. Decl. (Doc. 272), Exh. 2 (Dutt’s Email to Culberson of 1/4/07 at 0001330)

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112 113 4. Radical Prostatectomy

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114 At 12:54 p.m. on December 6, 2006, Dr. Jadwin formally reported to KMC leadership his concerns regarding a KMC patient who was scheduled for immediate radical prostatectomy to treat possible cancer. Plaintiff had recommended the attending physician delay the prostatectomy because he believed the pathologic findings of cancer were inconclusive. Instead, Plaintiff had recommended the findings be validated by outside experts.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin’s email to Dutt, Culberson et al. of 12/6/06 at DFJ1479); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 61 at 13:19-25); Lee Supp. Decl. (Doc. 267), Exh. 24 (Rog 67 at 14:2223 (noting difficulties outside reviewers had reaching conclusions about the diagnosis)

115 Radical prostatectomies pose numerous risks to patient care, including incontinence, impotence and other morbid factors.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin’s email to Dutt, Culberson et al. of 12/6/06 at DFJ1479)

116 In his report to KMC leadership, Dr. Jadwin also complained of a pattern of non-transparent “peer review” being conducted against him and asked that the Board of Supervisors be apprised of his concerns and initiate a formal review.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin’s email to Dutt, Culberson et al. of 12/6/06 at DFJ1479-1480)

117 Four minutes later, at 12:58 p.m., Dr. Dutt emailed Mr. Culberson complaining about Dr. Jadwin’s competency, and insistence on outside review of numerous cases after Dr. Dutt had counseled him on failing to send a case out for consultation. Dr. Dutt also complained about alleged “other problems” involving Dr. Jadwin which he worried might lead to loss of staff and the pathology department’s ability to serve patients and doctors in a timely manner.

(Lee Decl. (Doc. 266), Exh. 23 (Dutt Email to Culberson dated 12/6/07 at 0001466)

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118

The patient ultimately decided not to proceed with the prostatectomy.

119 G. COUNTS 3 & 4: DEFENDANT COUNTY’S MEDICAL LEAVE RETALIATION

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120 Plaintiff was eligible to take medical leave as of December 16, 2006

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA NO. Nos. 134-138 at 28:15-29:10)

121 Plaintiff requested and took reduced work schedule CFRA medical leave from December 16, 2005 to at least March 15, 2006.

Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152, 1154); Exh. 18 (Bryan memo to JCC at 14761477, paras 6,7); Riskin Dec, Exh. 1 & 2

122 Members of the JCC subsequently voted to demote Plaintiff, basing their decision on his unavailability due in part to his medical leave. Mr. Bryan told the JCC at the removal vote: “This recommendation [for removal] is based on Dr. Jadwin’s unavailability for service because of extended medical leaves..”

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 8:28-9:5); Lee Decl. (Doc. 266), Exh. 17 (JCC Meeting Minutes of 7/10/06 at item 10 on 0009820 to 0009821); Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476).

123 Previously on April 17, 2006, 4 months into Plaintiff’s reduced work schedule medical leave, Bryan admitted to Dr. Jadwin, “Yes the Department of Pathology continues to function well as it has for many years, and yes, you have made many positive changes in the department.” Yet on April 28, 2006, Bryan ordered Dr. Jadwin onto full-time leave unti lJune 16, 2006.

Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)

124 Plaintiff also has direct evidence that Plaintiff’s medical leave was a negative factor in the Nonrenewal

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:19114:4)

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125

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126 H. COUNTS 4 & 5: DEFENDANT COUNTY’S MEDICAL LEAVE DENIAL/INTERFERENCE

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127 On April 28, 2006, Defendant Bryan represented to Dr. Jadwin that he was still entitled to 137 hours of medical leave.

Lee Decl. (Doc. 266), Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ1152, 1154)

128 Sandra Chester, Defendant County’s then-HR Director, testified in Depo. that Plaintiff’s request for medical leave in his email to Bryan and herself on March 16, 2006; and provision by Dr. Jadwin’s treating therapist, Dr. Riskin, of leave certification on April 29, 2006 was timely under Defendant County’s customary practice.

Lee Supp. Decl. (Doc. 267), Exh. 15 (Chester Depo at 120:1-16)

129 Dr. Riskin’s certifications notified it that Plaintiff’s depression was serious enough to require a reduced work schedule leave and regular treatment from December 16, 2005 to September 16, 2006

Riskin Decl. (Doc. 270), Exh. 1 &2

130 Nonetheless, Defendant Bryan denied Plaintiff reduced work schedule medical leave, and forced him to take fulltime “personal necessity leave” under the County’s leave policy.

Lee Decl. (Doc. 266), Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ1152); Lee Decl. (Doc. 266), Exh. 18 (Bryan Memo to JCC of 7/10/06 at No. 9 on 001476); No. 1201.20 on 0001501; No 1201.30 on 0001501-1502; No. 1202.20 at 0001523-1524

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131 132 I. COUNT 6: DEFENDANT COUNTY’S DISABILITY DISCRIMINATION

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133 1. Jadwin Was An Individual With Disabilities

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134 Dr. Jadwin was an individual with a mental disability because of his chronic major depressive disorder. Dr. Reading, Plaintiff’s forensic psychologist, diagnosed Dr. Jadwin as having Major Depressive Disorder. Dr. Reading also noted Dr. Jadwin reported developing depressed mood, pervasive anhedonia, suicidal ideation, sleep disturbance, and other symptoms while working at KMC.

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Reading Decl. (Doc. 269), Exh. 1 at “Diagnostic Impressions” on p. 58; Reading Decl. (Doc. 269), Exh. 1 at “Structured Clinical Interview” at p. 57-58

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135 Dr. Jadwin’s depression limited his ability to take pleasure from life, and to engage full-time in, and take pleasure from, the medical work to which he had devoted his life.

Reading Decl. (Doc. 269), Exh. 1 at “Structured Clinical Interview” at p. 57-58

136 Likewise, Defendant County has admitted, by and through the PMK Depo. testimony of its representative, Eugene Kercher, a psychiatrist, that it was familiar with the symptoms of depression and believed that Dr. Jadwin was depressed over several years during the tenure of his employment at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 17 (Kercher Depo at 95:13-22, 96:3-8)

137 Plaintiff also required sinus surgery and required a few weeks to recover from it during May of 2005.

Jadwin Decl. (Doc. 265), Exh. 7 (Jadwin’s Letter to Bryan of 5/31/06 at DFJ1175)

138 Further, Plaintiff suffered an avulsed ankle at the end of May of 2005 that limited his ability to walk.

Jadwin Decl. (Doc. 265), Exh. 7 (Jadwin’s Letter to Bryan of 5/31/06 at DFJ1175)

139 The limitations from these physical conditions contributed to Plaintiff’s limitations from his chronic depression during May through the first part of June of 2005.

Riskin Decl. (Doc. 270), Exh. 3 at DFJ1814

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140

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141 2. Plaintiff Was “Otherwise Qualified”

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Lee Decl. (Doc. 266), Exh. 19 (Bryan’s Letter to DHS of 7/25/06 at 0001619); Exh. 18 (Bryan’s Letter to JCC of 7/10/06 at top of 001476 and end of 001457); Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ01155-1159, DFJ01164); Exh. 16 (Nunn’s Cover Email to Jadwin of 6/26/06 at DFJ01346); Exh. 10 (Bryan’s Letter to Supervisors of 1/17/06 at No. 10 on 0001567)

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142 143 3. Defendant County Knew Dr. Jadwin Was An Individual with Disabilities

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144 Plaintiff’s physician, Dr. Lempel, disclosed Plaintiff’s depression when he faxed his medical report to KMC’s HR Department on November 30, 2000, around the time of Plaintiff’s hire.

Lee Decl. (Doc. 266), Exh. 1 (Lempel Medical Report of 11/30/00 at DFJ00102-103 and handwritten Zoloft prescription at bottom of page)

145 Defendant Bryan admitted knowing that Dr. Jadwin needed leave because of his depression.

Lee Decl. (Doc. 266), Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001140); Exh. 18 (Bryan Memo to JCC of 7/10/06 at 0001500 & 0001506)

146 Dr. Riskin’s certifications stated that Plaintiff needed medical/recuperative leave for depression from December 16, 2005 to September 16, 2006

Riskin Decl. (Doc. 270), Exh. 1 &2

147 Supervisor Watson testified in Depo. that he knew Dr. Jadwin was in continuous need of extensions of his medical leave.

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 80:22-81:2)

148 On April 4, 2007, during Plaintiff’s Admin Leave, Plaintiff expressly notified Defendant County in writing that Plaintiff was depressed and that the Admin Leave was exacerbating his chronic depression.

Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

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149

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150 4. Disability Was A Motivating Factor in Demotion, Pay Cut & Nonrenewal

3 4

6 7 8 9 10

.

11

Lee Opp. Decl., Exh. 56 (PMK Dutt Depo. at 243:7-11) (sometimes appropriate to punish an employee for taking medical leave)].

12 13

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Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4); Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at top of 001476; No. 9 on 001477; and end of 001457) [Lee Decl., Exh. 17 (JCC Minutes of 7/10/06 meeting at ¶ 10 on 0009830-9831); Lee Opp. Decl., Exh. 7 (Patrick Depo. at 27:5-8 & 30:2-20); Lee Opp. Decl., Exh. 14 (Kercher Depo. at 99:20100:17); Lee Opp. Decl., Exh. 35 (Smith Depo. at 14:22-15:8); Lee Opp. Decl., Exh. 48 (emails between Dutt & Barnes of 9/14/06 at 0000830)].

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151 152 J. COUNT 7: DEFENDANT COUNTY’S FAILURE TO REASONABLY ACCOMMODATE 153 On January 9, 2006, Dr. Jadwin asked Defendant Bryan to allow him to work part-time and at home while he was recovering from his disabling depression.

Lee Decl. (Doc. 266), Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001140)

154 Dr. Riskin, Plaintiff’s psychiatrist, certified that part-time work was medically necessary.

Riskin Decl. (Doc. 270), Exh. 1 &2

155 KMC accommodated Jadwin’s disability from December 16, 2005 to April 28, 2006 by providing him with the reduced work schedule medical/recuperative leave and ability to perform work at home that he requested during his meeting with Defendant Bryan on January 9, 2006.

Lee Decl. (Doc. 266), Exh. 18 (Bryan memo to JCC at 14761477, paras 6,7); Riskin Dec, Exh. 1 & 2

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156 As customary, a Locum Tenens pathologist covered Plaintiff’s clinical pathologist duties, while Plaintiff performed the remaining10-20% of his administrative duties as Chair of Pathology.

3 4 5 6 7 8

157 As usual, if Dr. Jadwin was unable to attend to an administrative duty at a particular time, then Dr. Dutt filled in for him. 158 On March 16, 2006, Dr. Jadwin requested an extension of his reduced work schedule leave. Dr. Jadwin submitted Dr. Riskin’s certification of his continuing need for a reduced work schedule within three days of learning that Defendant County required it.

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Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157); Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)

159 On April 28, 2006, Bryan refused to accommodate Jadwin’s disability. Instead he forced him to take full-time leave, and refused to hold his job open for him any longer while he was on recuperative leave, and refused to allow Dr. Jadwin to return to work until he could work full-time. As a result, Dr. Jadwin was prevented continuing to carry out his duties as Chair of Pathology.

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160

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161 K. COUNT 8: DEFENDANT COUNTY’S FAILURE TO ENGAGE IN INTERACTIVE PROCESS

19 20 21

162 Defendant Bryan acted in bad faith when he unilaterally denied Dr. Jadwin’s request for continuing accommodation in the form of part-time work, and refused to allow him to return to work until he could work full time.

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001500 & 0001506); Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ011551159, DFJ01164)

163 Defendant Bryan also acted in bad faith when he represented to the JCC that Dr. Jadwin’s lack of communication with him led him to believe that Dr. Jadwin had essentially abandoned his job.

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001500 & 0001506); Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ011551159, DFJ01164)

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164

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165 L. COUNT 9: ALL DEFENDANTS’ PROCEDURAL DUE PROCESS VIOLATIONS 166 1. Direct Liability of Defendant County under Monell 167 The Bylaws of Kern Medical Center as in effect between June 13, 2006 and October 4, 2007 (“Bylaws”) provided for due process for core physicians in numerous scenarios like loss of hospital privileges, but not for (i) removal of physicians from department chairmanship, (ii) placement of physicians on administrative leave, or (iii) nonrenewal of physician employment contracts with Defendant County.

Lee Decl. (Doc. 266), Exh. 3 (Bylaws at 11599 - 11601 etc.)

According to Bylaws Section 12.2 GROUNDS FOR HEARING, due process is provided in the following situations: “A. Denial of medical staff membership. B. Denial of requested advancement in staff membership status, or category. C. Denial of medical staff reappointment. D. Suspension of staff membership or clinical privileges for more than thirty (30) days in any twelve (12) month period. E. Demotion to lower staff category or membership status. F. Summary suspension of staff membership or clinical privileges for more than fourteen (14) days. G. Revocation of medical staff membership. H. Denial of requested clinical privileges. I. Involuntary reduction of current clinical privileges. J. Termination of all clinical privileges. K. Involuntary imposition of significant consultation or monitoring requirements (excluding monitoring incidental to provisional status and Section 7.3).” The due process afforded by the Bylaws in the above cases is robust, e.g., Bylaws Section 12.3-1 NOTICE OF ACTION OR PROPOSED ACTION. 168 The Board of Supervisors of Defendant County ratified the Bylaws on December 13, 2004.

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Lee Supp. Decl. (Doc. 267), Patrick depo, 40:1-4); Lee Supp. Decl. (Doc. 267), Exh. 1 (Board of Supervisor Minutes of 12/13/04 at p. 4, item 20); Lee Decl. (Doc. 266), Exh. 3 (Bylaws at 0011529)

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169 When the Defendants failed to provide Plaintiff with adequate due process in connection with the Demotion, Admin Leave and Nonrenewal, they were acting pursuant to the Bylaws.

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Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA Nos. 219-221 at 45:321); Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 258:12-16)

3 4 5 6 7

170 171 2. 42 U.S.C. 1983 Requirements 172 It is incontrovertibly established that “Any acts or omissions of the individual Defendants were under color of law.” See Scheduling Order, 9:22-23.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 9:22-23)

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173

10

174 3. 14th Amendment Elements

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175 4. Demotion & Paycut 176 Plaintiff’s employment contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would receive Base Pay of $287,529, and that Plaintiff would be chair of KMC’s pathology department.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, p.2, 20)

177 Moreover, the employment contract barred Defendant County from reducing Plaintiff’s Base Pay, removing Plaintiff from chair or terminating or otherwise modifying the Contract at will, without cause, or without Plaintiff’s consent.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 227 at 46:22-26); Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract at DFJ164, DFJ165, DFJ168, DFJ169)

178 Defendant County has not removed a department chair without cause since at least October 2000

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 227 at 46:22-26)

179 Defendants County and Harris told Plaintiff several times that the Demotion “necessitated” the Paycut, and that he would have to agree to it to continue working at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 228 at 46:27-47:3); Lee Decl. (Doc. 266), Exh. 3 (Barnes email to Lee of 9/15/06 at DFJ1390); Lee Decl. (Doc. 266), Exh. 20 (Harris Letter to Jadwin of 9/1/06 at DFJ1383)

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180 Having no other choice, Plaintiff executed the Paycut amendment to his employment contract.

Lee Supp. Decl. (Doc. 267), Exh. 18 (Jadwin depo, 1025:4-7); Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06)

181 Defendant County was subjectively aware of Plaintiff’s contractual interest in Base Pay, as evidenced by the numerous reminders by Defendants Bryan and County that Plaintiff would have to expressly amend his employment contract to implement the Paycut resulting from his Demotion.

Lee Supp. Decl. (Doc. 267), Exh. 3 (Barnes Letter to Lee of 9/15/06 at DFJ1390), Lee Decl. (Doc. 266), Exh. 20 (Harris Letter to Bryan of 9/1/06 at DFJ1383)

182 There was nearly a month gap between the time Defendant Bryan informed Plaintiff he was initiating demotion procedures to the time the JCC voted to demote Plaintiff.

Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 00098200009821, item 10)

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Jadwin Supp. Decl. (Doc. 272), 183 Defendants never notified Plaintiff of the time or place of the JCC vote to demote Plaintiff, gave him an explanation para 3 of the evidence against him, or provided him an opportunity to tell his side of the story,

18 19 20 21 22

184 Before the JCC vote occurred, Plaintiff sent a letter to Defendant County legally challenging the Demotion.

Lee Supp. Decl. (Doc. 267), Exh. 2 (Lee Letter to Barnes of 6/29/06 at DFJ1349)

185 Nor did Defendant County ever offer Plaintiff a postdeprivation hearing.

Jadwin Decl. (Doc. 265), para 4, Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009820-0009821, item 10)

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186 More importantly, the JCC did not constitute an impartial tribunal since it comprised individuals who had been harassing and retaliating against Dr. Jadwin and/or individuals on whom Dr. Jadwin was blowing the whistle.

Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009819); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507); Jadwin Decl. (Doc. 265), Exh. 5 (Jadwin memos to Smith of 3/23/06); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland depo, 332:14-21)

187 Nor was Defendant Bryan – who invited Plaintiff to contact him, and only, him regarding the Demotion he himself had instigated – an impartial adjudicator given his demonstrated bias against Plaintiff.

Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16 (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)

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188 189 5. Admin Leave

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190 Plaintiff’s employment contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would be paid Professional Fees.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, at DFJ00154, DFJ00156)

191 Defendant County was subjectively aware of Plaintiff’s contractual interest in Professional Fees, as evidenced by the then-CEO’s letter to Plaintiff regarding the Paycut. Mr. Culberson explained that, as a demoted staff pathologist with a drastically reduced base salary, Plaintiff would nevertheless be able to take advantage of his reduced administrative duties in order to increase his Professional Fees-based income.

Lee Decl. (Doc. 266), Exh. 21 (Culberson Letter to Jadwin of 9/20/06 at DFJ01398)

192 Mr. Culberson participated in the decision to to place Plaintiff on Admin Leave, which denied Plaintiff the opportunity to earn Professional Fees.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 42, 28:3-9)

193 Defendants failed to provide Plaintiff any pre- or postdeprivation procedure when placing him on Admin Leave.

Jadwin Decl. para 5; Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

194 When Defendant County sent a letter to Plaintiff placing him on Admin Leave, the letter stated only that the Admin Leave was “pending resolution of a personnel matter”.

Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

195 At no time did Defendants County or Harris inform Plaintiff of the nature of the charges against him, give him an explanation of the evidence against him, or provide him an opportunity to tell his side of the story.

Jadwin Decl. para 6; Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

196 Even when Plaintiff protested the lack of due process, Defendant County refused to respond.

Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

197 Since 1995, only one other department chair at KMC had ever been placed on administrative leave in excess of 1 month.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 27, 19:23-20:6)

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198

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199 6. Nonrenewal

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200 Defendant County customarily renews the contracts of all of its KMC medical staff.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21); Jadwin Decl. para 7

201 When Plaintiff asked Defendant County to identify all members of the KMC medical staff – which comprises roughly 60 full-time faculty physicians at any given time – who had employment contracts which were not renewed during the period from October 24, 2000 to the present, Defendant County was able to name only one doctor.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21

202 At no time did Defendant County inform Plaintiff of the nature of the charges against him, give him an explanation of the evidence against him, or provide him an opportunity to tell his side of the story.

Jadwin Decl. para 8

203 Defendant County denies that anyone even participated in a decision not to renew Plaintiff’s employment contract.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 45, 53:16-20

204 Even when Plaintiff protested the lack of due process, Defendant County refused to respond.

Lee Supp. Decl. (Doc. 267), Exh. 7 (Lee Letter to Wasser of 5/1/07 at DFJ1703-DFJ1704); Jadwin Supp. Decl. para 4; Jadwin Decl. para 13

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205 206 F. SEVENTH DEFENSE: 2 YEAR SOL 207 Defendant County itself admits that no relevant event occurred on or before January 6, 2005.

Lee Supp. Decl. (Doc. 267), Exh. 23 (Rog. No. 5, 5:17-25)

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208 209 G. EIGHTH DEFENSE: ADMINISTRATIVE EXHAUSTION

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210 Defendant County admits that Plaintiff has Exh.austed his administrative remedies as to all claims except for the new FMLA/CFRA/FEHA retaliation claim added via the Second Amended Complaint, filed on October 7, 2008 (Doc. 241).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA1 at 4:23-27); Lee Supp. Decl. (Doc. 267), Exh. 23 (Rog. No. 6, 6:1-3); Lee Supp. Decl. (Doc. 267) para 7

211 Plaintiff Exh.austed his CFRA & FEHA oppositional/participation retaliation claims by filing a timely complaint with the California Department of Fair Employment & Housing (“DFEH”) on September 3, 2008, and obtaining a right to sue letter that same day.

Lee Supp. Decl. (Doc. 267) para 7

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213 PERSONS

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214 Defendant Bryan was the Chief Executive Officer at KMC from September of 2004 until September of 2006.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:4-6); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:20)

215 Eugene Kercher, M.D. was the President of KMC Medical Staff from July 2004 to June 2006, and a member of the JCC

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:7-10); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:4-5)

216 Defendant Irwin Harris, M. D., was Chief Medical Officer at KMC from July of 2005 to September of 2007 , and a non-voting member of the JCC.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:11-14); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 10:24)

217 Jennifer Abraham, M.D. was Immediate Past President of KMC Medical Staff during 2004-2006, and President Elect in July 2006 to December of 2007

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:15-17); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:4, 9:7, 10:2, 10:6)

218 Scott Ragland, D.O. was President-Elect of the KMC Medical Staff from 2004-2006, Chair of the Quality Management Committee, and a member of the JCC.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:18-21); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:3, 9:6, 10:1, 11:3-4)

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219 Toni Smith was the Chief Nurse Executive of KMC, and a member of the JCC

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:22-24)

220 William Roy, M.D., was Chief of the Division of Gynecologic Oncology at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:25-27)

221 Marvin Kolb, M.D. was former Chief Medical Officer at KMC who left in September of 2004.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:21)

222 Phillip Dutt, M.D., became Chair of Pathology at KMC in August of 2006

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 10:16)

223 David Culberson was Interim Chief Executive Officer from September of 2006 to May of 2007.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 10:22)

224 Paul Hensler became Chief Executive Officer at in May of 2007.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog 11 at 10:23)

225 Gilbert Martinez was and is the Manager of Laboratory Services at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 10:2-7)

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OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 226 Beginning January 2006, Defendant County did not pay Plaintiff for the days he did not work.

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Decl. of Eugene Lee in Opposition to Defendants’ Motion for Summary Judgment (“Lee Opp. Decl.”), Exh. Bryan’s Memo to JCC of 7/10/06 at 0001476); Rizzardi Decl. (Doc. 271) at Table 6 showing dramatic Plaintiff’s earnings decrease starting 1/17/06.

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227 Bryan testified that testified that “actual functioning of the department of [pathology] actually was fairly good” as of April 17, 2006.

Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).

228 Plaintiff testified several times that Bryan had ordered him off of part-time and onto full-time medical leave on April 28, 2006 so as to burn up Plaintiff’s medical leave entitlement. Bryan’s Depo. testimony did not refute this.

Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).

229 According to Defendant County’s verified response to Plaintiff’s Interrogatory No. 42, Harris participated in the decision to place Plaintiff on Admin Leave.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 42 at 52:24-53:2).

230 On June 29, 2006, Plaintiff’s counsel sent a letter to Kern County counsel Karen Barnes (“Barnes”) which was captioned “Re: Preservation / no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.”. This letter pre-dated the Demotion of July 10, 2006 by almost a month.

Lee Opp. Decl., Exh. 15 (Lee Letter to Barnes of 6/29/06 at pp. 1 and 2).

231 Plaintiff’s counsel’s letter to Barnes of June 29, 2006 outlined in detail Plaintiff’s pending claims for whistleblower and medical leave retaliation and disability discrimination and formally demanded Defendant County take all appropriate affirmative steps to preserve evidence relating to those claims, including “notes taken at meetings with or concerning Dr. Jadwin”.

Lee Opp. Decl., Exh. 15 (Lee Letter to Barnes of 6/29/06 at pp. 1 and 2).

232 On March 29, 2007, Plaintiff’s counsel again sent a letter to Barnes stating, “I would like to remind you that KMC is under a strict legal obligation to preserve and prevent spoliation . . . .”.

Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 3/29/07 at p. 2).

233 Barbara Patrick is a former Chair of the Kern County Board of Supervisors and member of the JCC who voted to demote Plaintiff.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 22:2-12; 26:20-27:3).

234 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she had taken notes at every JCC meeting.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

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235 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she had shredded all of her documents upon leaving office on January 8, 2007.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

236 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she had thrown out documents which included JCC meeting agendas on the margins of which she had taken notes.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

237 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that Kern County counsel had never contacted her regarding preservation of documents and evidence in connection with Plaintiff’s lawsuit.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

238 Defendants failed to produce a single JCC meeting agenda in response to Plaintiff’s numerous discovery demands.

Lee Opp. Decl., para. 6; Exh. 17 (RPD No. 44 at 20:15-21).

239 At Plaintiff’s 8/19/08 Depo. of Patrick, she was able to recall very little in the absence of her spoliated notes about the JCC meeting at which the Demotion was approved.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 75:16-78:19).

240 David Culberson is former CEO of KMC who decided to place Plaintiff on Admin Leave.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 10:13-16; 10:23-11:1).

241 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that he had taken notes at each of up to 10 meetings of the KMC “leadership team” regarding Plaintiff and the Pathology department.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 42:24-47:9).

242 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Culberson destroyed those notes prior to January 2007, by shredding them, ripping them up, crumpling them up and throwing them in the trash.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 42:24-47:9).

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243 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that no one ever contacted him regarding preservation of documents and evidence in connection with Plaintiff’s lawsuit.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 42:24-47:9).

244 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in the absence of his spoliated notes – was unable to recall important details regarding the allegations against Plaintiff that led to the Demotion as related to him by Harris.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 61:7-19; 63:4-6).

245 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in the absence of his spoliated notes – was unable to recall important details regarding the HR director’s investigative findings as to disruption and chaos in the Pathology department at the end of 2006 just prior to the Admin Leave.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 102:16-21; 98:4-15; 99:2-10).

246 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in the absence of his spoliated notes – was unable to recall important details regarding Dr. Dutt’s investigative findings regarding Plaintiff’s alleged misconduct at the end of 2006.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 160:23161:2; 159:9-13; 157:15-158:4).

247 Scott Ragland is the former President of the Medical Staff and member of the JCC (“Ragland”).

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 8:23-9:10).

248 Ragland testified at his 8/22/08 Depo. that no one ever contacted him regarding preservation of documents and evidence in connection with Plaintiff’s lawsuit

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 61:10-25).

249 Ragland testified at his 8/22/08 Depo. that he deleted all of his emails, including emails relating to Plaintiff, and sneered at Plaintiff’s consternation over the spoliation

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 63:13-23).

250 At Ragland’s 8/22/08 Depo., he sneered at Plaintiff’s consternation over the spoliation of evidence.

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 63:13-23).

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251 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Ragland had investigated Plaintiff just prior to the Admin Leave.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at.73:9-18).

252 Ragland testified at his 8/22/08 Depo. that he produced only a single document in all of discovery in this action, and even that was not in response to any request from an attorney (as he never received one) but on his own initiative.

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 69:21-71:1).

253 At Ragland’s 8/22/08 Depo., he was able to recall very little in the absence of his spoliated documents about material events.

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 23:13-24:24).

254 At the Depo. of PMK Eugene Kercher, he testified that KMC did not renew John Digges’ employment contract because Digges was asking for an unacceptable salary increase.

Lee Opp. Decl., Exh. 14 (Kercher Depo. at 27:1-12).

254 Plaintiff testified on 10/21/08 that he would have accepted renewal of his contract as of October 4, 2007, albeit under protest over his demoted status and reduced Base Pay.

Lee Opp. Decl., Exh. 6 (Jadwin Depo. at 1096:9-14; 1096:221097:3).

255 Dr. Philip Dutt, Acting Chair of Pathology, testified as PMK for the County on 8/29/08 that by the Monday following Thanksgiving 2006, he had had a conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after that weekend.”

Lee Opp. Decl., Exh. 12 (Dutt Depo. at 10:5-24).

256 Dr. Philip Dutt, Acting Chair of Pathology, testified as PMK for the County on 8/29/08 that he had suggested to Harris that KMC retain someone who had experience with CAP inspections to conduct a mock unannounced inspection. Harris quickly approved Dutt’s proposal on either the Friday or the Monday before Thanksgiving 2006.

Lee Opp. Decl., Exh. 12 (Dutt Depo. at 13:1-14:6).

257 JCC minutes regarding the contemplated demotion of the chair of the OB-GYN department stated: “The problem is we have tied a portion of the chair’s compensation to that position, that is a property right. Dr. Perez is entitled to due process hearing for this reason.”

Lee Opp. Decl., Exh. 18 (JCC Meeting Minutes of 9/10/07 at Agenda Item 6 on Bates 0009221).

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258 Paragraph 139 (“Disciplinary Actions”) of the Manual states in relevant part: “Any employee may be dismissed, suspended, reduced in rank and/or compensation, reprimanded or otherwise disciplined for any action or conduct which in the judgment of the appointing authority provides good cause for discipline under the Civil Service Rules or other laws, regulations, or policies [. . . .] .6 Administrative Leave with Pay. A department head may place an employee on administrative leave with pay if the department head determines that the employee is engaged in conduct posing a danger to County property, the public or other employees, or the continued presence of the employee at the work site will hinder an investigation of the employee’s alleged misconduct or will severely disrupt the business of the department [. . . .]”. (emphasis added). 259 At his Depo. of 8/25/08, Watson testified that Defendant County decided not to renew Plaintiff’s contract in retaliation for his filing the instant lawsuit. Watson was asked twice if he recalled clearly that this was the case and each time he answered yes:

Page 112 of 115

Lee Opp. Decl., Exh. 19 (Kern County Policy & Administrative Procedures Manual at Section 139 (Disciplinary Actions) and 139.6 (Administrative Leave with Pay) on Bates 0016940-16941).

Lee Opp. Decl., Exh. 10 (Watson Depo. at 110:12-111:5; 111:1524).

Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwin’s physical absence being a reason for his nonrenewal of his contract? A. Well, it could be that. It could be the fact that I think by then he was -- probably was suing us. So why would you want to establish a contractual relationship with somebody who’s suing you. Q. Okay. Well, he was also suing you at the time of his removal or actually at the time of his --no, he wasn’t. He wasn’t. Okay. But I mean, you say why would you establish a contractual relationship with someone who’s suing you, right? A. Right. Q. Was that -- does that mean -- are you just speculating now, just guessing, or was that a consideration for his nonrenewal? A. Well, I remember it being discussed. […] Q. Okay. But you recall it being discussed at the JCC meetings? A. Yes.

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260 At his Depo. of 8/25/08, Watson re-affirmed a third time – volunteering it on his own initiative – that oppositional retaliation was an additional motivating factor for the Nonrenewal:

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Lee Opp. Decl., Exh. 10 (Watson Depo. at 113:15-114:4).

Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was that Dr. Jadwin wasn’t available for work; is that correct or -A. My understanding was that he had -- he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract.

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261 Defendants claim Watson gave confused testimony and suggest that his testimony regarding Nonrenewal was likewise confused even though the allegedly confused testimony is elicited by a completely different line of questioning regarding Demotion that occurs over 100 pages and 2 hours earlier in the Depo. transcript.

Lee Opp. Decl., Exh. 10 (Watson Depo. at 12:10-14; 13:17-14:2).

262 Bryan could not have “granted” Plaintiff 90-day personal necessity leave because he never asked for it. His request for extension of leave of absence of March 16, 2006 was for extension of his reduced work schedule medical leave.

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263 Plaintiff’s request of March 16, 2006 for leave extension requested an extension of reduced work schedule leave, as established by Plaintiff’s later submitted medical certification.

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264 Plaintiff’s leave extension request of March 16, 2006 asked for extension of Plaintiff’s protected medical leave, not personal leave.

Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157); Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752); Lee Supp. Decl. (Doc. 267), Exh. 15 (Chester Depo at 120:1-16)

265 Defendants’ own Separate Statement (Doc. 259) admits, Plaintiff’s letter to Bryan of May 31, 2006 was requesting more time to decide whether he would be returning fulltime or resigning. It was not requesting more leave past September 16, 2006. [DMF 23]

Defendants’ Separate Statement (Doc. 259), DMF 23

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266 The prostatectomy patient ultimately elected not to proceed with prostatectomy based on the second set of biopsies recommended by Plaintiff coming back negative for cancer.

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Lee Opp. Decl., Exh. 52 (Shertudke Depo. at 42:17-20)].

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267

Disability Was A Motivating Factor in Administrative Leave.

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Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06 at “Assignments” on DFJ01420); Lee Opp. Decl., Exh. 58 (Pathologist Chair Phlip Dutt employment contract amendment no. 1 of 10/10/05 at “Assignments” on Bates 0026200; Exh. 59 (Pathologist Savita Shertukde employment contract of 11/1/05 at “Assignments” on Bates 0026248; Exh. 60 (Pathologist Gian Yakoub employment contract of 6/19/07 at “Assignments” on Bates 0026193. [Lee Decl., Exh. 17 (JCC Minutes of 7/10/06 meeting at ¶ 10 on 0009830-9831); Lee Opp. Decl., Exh. 7 (Patrick Depo. at 27:5-8 & 30:2-20); Lee Opp. Decl., Exh. 14 (Kercher Depo. at 99:20-100:17); Lee Opp. Decl., Exh. 35 (Smith Depo. at 14:2215:8); Lee Opp. Decl., Exh. 48 (emails between Dutt & Barnes of 9/14/06 at 0000830)].

14 15 16 17 18 19

Lee Opp. Decl., Exh. 56 (PMK Dutt Depo. at 243:7-11) (sometimes appropriate to punish an employee for taking medical leave)].

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See DMF 69-190 re Defendants' pattern and practice of subjecting Plaintiff to smear campaign continued on Jadwin's return from medical leave on October 4, 2006.

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Date: December 1, 2008 /s/ Eugene D. Lee 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] Attorney 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, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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DAVID F. JADWIN, D.O.,

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Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

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Defendants.

16 17

Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 I, Eugene D. Lee, declare as follows: 20 1.

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

21 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 22 counsel of record for Plaintiff David F. Jadwin in this matter. 23 2.

I am making this declaration in opposition to Defendants’ Motion for Summary

24 Judgment. I have personal knowledge of the matters set forth below and I could and would competently 25 testify thereto if called as a witness in this matter. 26 3.

Attached hereto as Exhibits are true and correct copies of the following documents:

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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Exh. 1

Date 7/10/2006

Description Memo from Mr. Bryan to JCC re Recommendation of Demotion of Dr. Jadwin

2 3 4 5 6

8/14/2008 8/26/2008 1/9/2008 3/12/2008 10/21/2008

Deposition Transcript of Peter Bryan, Vol I Deposition Transcript of Peter Bryan, Vol II Deposition Transcript of David Jadwin, Vol II Deposition Transcript of David Jadwin, Vol V Deposition Transcript of David Jadwin, Vol VI

7

8/18/2008

Deposition Transcript of Former Supervisor Barbara Patrick, Vol I

8

4/16/2008

Deposition Transcript of Former Lab Mgr Gilbert Martinez

10

9

8/22/2008

Deposition Transcript of Former President Scott Ragland

11

10

8/25/2008

Deposition Transcript of Supervisor Ray Watson

11

8/21/2008

Deposition Transcript of Former CEO David Culberson

12

8/29/2008

Deposition Transcript of PMK Philip Dutt, Vol. I

13

8/28/2008

Deposition Transcript of Former COO Sandra Chester

17

14

9/4/2008

Deposition Transcript of PMK Eugene Kercher

18

15

6/29/2006

Letter from Lee to Barnes re Spoliation of Evidence

16

3/29/2007

Letter from Lee to Barnes re Spoliation of Evidence

17

11/20/2007 Defendants’ Responses to Plaintiff’s Request for Production, Set One

18

9/10/2007

1 2 3 4 5 6 7 8 9

12 13 14 15 16

19 20 21 22 23 24 25

19

Joint Conference Committee Meeting Minutes re Demotion of OB/GYN Chair Kern County Policy & Administrative Procedures Manual, Section 139 (Disciplinary Actions)

20

3/12/2002

21

12/26/2003 Change of Employee Status

26

CMO Marvin Kolb Memo to Jose Perez re Pathologist Elsa Ang Accusations

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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22

5/15/2006

Expert Consulting Services Agreement, between Consultant William Colburn and Kern County

23

8/30/2006

Consultant William Colburn Report to Kern County re Review of Jadwin cases

24

8/13/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. I

5

25

8/27/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. II

6

26

5/3/2004

KMC FNA Consulting Project by UCLA Consultant David Lieu

27

8/18/2008

Deposition Transcript of Former President of Medical Staff Jennifer Abraham

1 2 3 4

7 8 9 10

28

Cancer Conference Presenter Guidelines

29

8/15/2008

12

30

10/19/2005 Exh. 202: Jadwin letter to Albert McBride, Cancer Conference Director re October Conference

13

31

11

Deposition Transcript of Former Cancer Committee Director Albert McBride

October Conference attendee feedback

14 32

11/9/2005

Oncology Conference attendee feedback of Savita Shertukde

33

8/25/2008

Deposition Transcript of OB-GYN Physician Joseph Mansour

34

Harris Memos to File re Mansour Behavior

35

5/10/2006 to 4/12/2007 8/19/2008

36

8/18/2008

Deposition Transcript of Chair of Surgery Maureen Martin, Vol. I

37

4/16/2008

Deposition Transcript of Histotech Evangeline Gallegos

38

4/19/2008

Deposition Transcript of Former CMO Marvin Kolb

25

39

2/26/2008

Deposition Transcript of Pathology Secretary Tracy Lindsey

26

40

2/26/2008

Deposition Transcript of Clerk Irene Lopez

15 16 17 18 19 20 21 22 23

Deposition Transcript of Nurse Executive Antoinette Smith, Vol. I

24

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41

12/6/2007

Deposition Transcript of Radiology Chair Javad Naderi

42

12/6/2007

Deposition Transcript of Cancer Committee Chair Ravi Patel

43

8/15/2008

Deposition Transcript of Former CEO Secretary Arlene Ramos-Aninion

5

44

12/5/2007

Deposition Transcript of Surgeon Edward Taylor

6

45

12/6/2007

Deposition Transcript of Neurosurgeon Charles Wrobel

46

8/21/2008

Deposition Transcript of Psychiatry Chair Tai Yoo

47

8/20/2008

Deposition Transcript of Acting Pathology Chair Philip Dutt

48

9/14/2006

Acting Pathology Chair Philip Dutt Email to Barnes re Plaintiff’s Paycut Amendment

12

49

10/17/05

Plaintiff email to Bryan re Serious Biopsy Errors

13

50

3/2/2006

Exh. 271: Plaintiff email to Bryan re Serious Biopsy Errors

51

4/21/2006

Emails between Plaintiff and Bryan re Serious Biopsy Errors

52

8/7/2008

Deposition Transcript of Pathologist Savita Shertukde

53

3/11/2008

Deposition Transcript of David Jadwin, Vol. IV

19

54

10/21/2003 Confidential Report on Lau Complaint against Jadwin

20

55

1/8/2008

Deposition Transcript of David Jadwin, Vol. I

56

9/9/2008

Deposition Transcript of PMK Acting Pathology Chair Philip Dutt, Vol. II

57

12/4/2007

Deposition Transcript of HR Director Steven O’Connor

58

10/10/2005 Amendment No. 1 to Employment Contract of Acting Pathology Chair Philip Dutt

59

11/1/2005

1 2 3 4

7 8 9 10 11

14 15 16 17 18

21 22 23 24 25 26

Employment Contract of Pathologist Savita Shertukde

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

60

6/19/2007 4.

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Employment Contract of Pathologist Gian Yakoub

Attached hereto as Exhibits 2-14, 24-25, 27, 29, 33, 35-47, 52-53 and 55-57 are true and

correct certified copies of deposition transcripts which I either personally conducted or attended. 5.

Attached hereto as Exhibits 15-16 are true and correct copies of letters which I authored

and faxed to Karen Barnes, Chief Deputy County Counsel for the County of Kern on the dates indicated. 6.

I have served four sets of written discovery on Defendants which included Document

Request No. 44. asking for “Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from Chair of Kern Medical Center’s Pathology Department to staff pathologist.” To date, Defendants have not produced any of the agendas for any JCC meetings including the meeting at which the JCC voted to approve Plaintiff’s demotion from chair. Defendants have engaged in a level of discovery obstruction that is more excessive than I have ever encountered in my 13 years practicing as an attorney, of which this is but the latest example. 7.

Attached hereto as Exhibits 17 is a true and correct copy of Defendants’ responses

received by me in response to Plaintiff’s Request for Production of Documents, Set One, propounded by me on behalf of Plaintiff.

16 17 18

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

19 20 21

Executed on: December 1, 2008

22 23

/s/ Eugene D. Lee

24

EUGENE D. LEE Declarant

25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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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

EXHIBIT 1

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7

",.,

KERN MEDICAL CENTER ADMINISTRATION OFFICE MEMORANDUM TO:

Joint Conference Committee

FROM:

Peter K. Bryan, CEO

SUBJECT:

Chairmanship, Department of Pathology

DATE: July 10,2006

---

Under the provisions ofparagraph 9.7-4 ofthe Medical StaffBylaws (enclosure 1) I recommend that Dr. David Jadwin be removed as Chairman, Department of Pathology. This recommendation is based on Dr. Jadwin's unavailability for service because of extended medical leaves for non-work related ailments. The pertinent facts related to this recommendation are as follows: 1. Dr. Jadwin is employed through an Agreement for Professional Services, Contract Employee, dated November 12, 2002 with the term of agreement running from October 5, 2002 through October 4,2007. He has been employed at KMC as a department chairman since October 24, 2000 (see enclosure 2). 2. Dr. Jadwin's job duties are identified in Exhibit A ofthat employment agreement and in paragraph 9.7-5 of the Medical Staff Bylaws. His usual work schedule calls for him to work an average of 48 hours each week. He is subject to the terms of his contract and all policies of the County, KMC and the medical staff governing documents. 3. As chairman ofa department, Dr. Jadwin is a key member ofthe leadership team. His physical presence is necessary on a regular basis for not just the effective functioning ofhis department, but also for institutional decision making through daily interactions with members of the medical and administrative staff. 4. Dr. Jadwin accrues vacation time at the rate of 6.15 hours per pay period for a maximum accrual of 160 hours per year. He accrues sick leave at the rate of2.46 hours per pay period with a maximum accrual of 64 hours per year. By the beginning ofpay period 05-23 (after a little more than five years of service), Dr. Jadwin had used 784 Clfthe 802 hours ofvacatiori accrued leaving a balance ofl8 hours, and he had used 272 of the 320 hours of sick leave accrued leaving a balance of about 48 hours. 5. In mid November 2005 Dr. Jadwin continued using vacation and sick time at a relatively high rate such that beginning in January 2006 he began to be paid for fewer than 80 hours per pay period. In other words, his rate ofabsence exceeded his accrual rates for vacation and sick leave. 6. On March 2,2006 Dr. Jadwin submitted a request for a 90-day medical leave retroactive to December 16,2005 and running through March 15,2006 with a I' return to duty on Thursday, March 16, 2006 (enclosure 3). This requestow,As approved in accordance with County Policy (enclosure 4). . U0147\)

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7. Dr. Jadwin did not report for work until March 23, 2006, working only two days that pay period and a total of only 50 hours during the entire month of April. 8. On April 22, 2006 Dr. Jadwin submits another requestfor a six-month medical leave retroactive to March IS, 2006 and extending through September IS, 2006 (see enclosure 5). Based on this request, on April 28, 2006 I met with Dr. Jadwin, Steve O'Connor from Human Resources, and Karen Barnes to discuss Dr, Jadwin's medical leave status and expectations for return to work. Dr. Jadwin was informed that County Policy allowed him a total of 480 hours of intermittent leave over a 12-month period. Also, that at his rate of use, he had only 137 hours of medical leave left available which would take him through June 16,2006, by which time he was instructed to give me his decision about his employment status. His options were to either return full time or resign his position. Dr. Jadwin indicated that he understood the conditions and that he would not be at work from May 1,2006 until his return (see enclosure6). 9. In early June 2006 Dr. Jadwin informed me in writing that he had another medical incident, could not return to work by June 16, 2006 and that he needed to extend his medical leave. This prompted my memorandum to him dated June 14, 2006 in which I informed him of two things. First, that pursuant to County Policy I would approve a Personal Necessity Leave of up to 90 days (enclosure 7). Second, that because of his continued absences, I was going to invoke the provisions ofthe Medical StaffBylaws and rescind his appointment as Chairman, Department of Pathology. Should he decide to return to work by the end of this 90 days period his contract would be changed to reflect a regular staffpathologist duty assignment as mutually agreed (see enclosure 8). 10. Since the middle of November 2005 Dr. Jadwin has worked only 32% of the hours normally expected ofa full time pathologist (enclosure 9). Since my notice of June 14,2006 Dr. Jadwin has made no attempt to contact me concerning my decision to relieve him of his chairman duties nor has he indicated any desire to negotiate a new contract. This recommendation to rescind Dr. Jadwin's appointment as Chairman, Department ofPathology is based solely on his continued non-availability to provide the leadership necessary for a contributing member ofthe medical staffleadership group. KMC must have its key personnel available, and Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chairman. Other than his latest written communication requesting an extension ofmedical leave, Dr. Jadwin hasmade no attempt in the last two months to contact me concerning his employment status or how the Department of Pathology should be managed during his extended absence. I therefore request that the Joint Conference Committee act pursuant to paragraph 9.7-4 of the Medical Staff Bylaws and, by majority vote, endorse my recommendation to rescind Dr. Jadwin's appointment as Chairman, Department of Pathology. Enclosures (9) cc:

Bernard Barman, County Counsel Karen Bames, Deputy County Counsel Irwin Harris, M.D., Chief Medical Officer

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the chief executive officer without hearing and appeal rights set forth in Article XII. 9.7-3

TERM OF OFFICE Each department chair shall serve until he/she resigns, is removed from office, or loses his or her medical staff membership or clinical privileges in that department.

9.7-4

REMOVAL Removal of a department chair may occur with or without cause upon the recommendation of the chief executive officer with the majority vote of the Joint Conference Committee.

9.7-5 RESPONSIBILITIES AND DUTIES OF DEPARTMENT CHAIRS Each department shall have a chair that shall be responsible for the overall supervision of clinical activity within the department. The chief executive officer shall review service by the department chair no less than biennially. The chair shall be responsible to the board, through the medical executive committee, for the following:

A.

High quality professional management and care of patients under the jurisdiction of the department.

B.

Establishing systems to monitor the quality of patient care and professional performance in the department through a planned and systematic process.

C.

Specific recornmendations and suggestions regarding improvement of patient care in his or her department.

D.

Review of professional performance of all members with respectto clinical privileges.

E.

Recommending delineated clinical privileges for each member of the department, including practitioner appointment and classification, reappointment, criteria for clinical privileges, and corrective action.

F. G.

the

Discipline of members and staff pursuant to Article XI. Evaluation of all full- and part-time medical staff and other members of the medical staff who are active clinically, or teach on an annual basis. Bylaws of the Medical Staff of Kern Medical Center Page 48

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;.1

Kern County

AGREEMENT FOR PROFESSIONAL SERVICES CONTRACT EMPLOYEE (County of Kern - David F. Jadwin, D.O.)

This Agreement is made and entered into this I ~ -eA day of M{~'t.tIt- , 2002, between the County of Kern, a political subdivision of the State of California (hereinafter "County"), which owns and operates Kern Medical Center (hereinafter "KMC"), and David F. Jadwin, D.O. (hereinafter "Core Physician"), a contract employee. RECITALS WHEREAS:

A.

County is authorized, pursuant to Government Code section 31000, to contract with specially trained persons, and further authorizes the payment of. compensation for the services rendered; and B. County requires assistance in the performance of professional medical services at KMC as such services are unavailable from County resources; and C. Core Physician has special training, knowledge and experience a"nd is licensed by the State of California to practice medicine and is qualified to render medical services. NOW, THEREFORE, it is agreed between County and Core Physician as follows:

Article I. TERM AND CONDITIONS

1.

TERM

The existing Agreement for Professional Services between County and Core Physician (Kern County Agt. #1012-2000, dated October 24, 2000) is terminated effective October 5,2002. This Agreement shalt be effective on October 5,2002, and shall remain in effect through" October 4, 2007. 2.

SERVICES

Core Physician shall render services as set forth in Exhibit "A," which is attached "and made a part of this Agreement.

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Article II. COMPENSATION 1.

SALARY (BASE) Core Physician shall be entitled to the following base compensation (as defined in Article II, Section 3): A. Core Physician will work full-time (i.e., according to AMA survey data for specialty but no less than forty [40] hours per week) and will be compensated with cash and other value as follows: Core Physician will be paid Eleven Thousand Twenty-One Dollars and Eight Cents ($11,021.08) biweekly not to exceed Two Hundred Eighty-Seven Thousand Five Hundred Twenty-Nine Dollars ($287,529) annually. The maximum payable under this Agreement shall not exceed One Million Four Hundred Thirty-Seven Thousand Six Hundred FortyFive Dollars ($1,437,645) per the five-year term of the Agreement. County will withhold, from said daily compensation of Core Physician, all applicable federal, state and local payroll taxes. County will pay the Employers portion of the hospital insurance portion of Social Security ("FICA 2"). B. Core Physician will be paid biweekly on the same schedule as regular fulltime County employees. The exact date of said biweekly payments will be at the sole discretion of County, as is reasonable and convenient for County. C. No adjustment in compensation will be effective without a written amendment to this Agreement.

2.

OVERALL COMPENSATION STRUCTURE A. The purpose of this compensation plan is to provide market-based, performance-driven compensation that recognizes a Core Physician's efforts and contributions toward promoting the mission and values of KMC. Core Physicians will be identified as such in their contracts with KMC. B. Total compensation for Core Physicians will be composed of a base salary paid by the County, professional fee payments from third-party payors, and potential other income generated due to the individual's status as a physician. These ihree sources of income shall he. referred to in this Agreement as total Core Physician compensation. The structure for determining total Core Physician compensation shall be referred to in this Agreement as the compensation plan.

2

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C. A Kern County clearing account and a KMC compensation budget unit will be established to account for all funds generated and received to pay total Core Physician compensation and to pay all expenses associated with this compensation plan. These will act as trust accounts and will be solely used for this purpose. D. A Plan Administrator will be retained by KMC to administer this compensation plan and will report to the Faculty Practice Board. E. A Board of Directors will be established to oversee the compensation plan and the Plan Administrator of the compensation plan. This Board of Directors shall be referred to in this Agreement as the Faculty Practice Board. The Faculty Practice Board will establish bylaws including powers, duties and responsibilities· to be approved both by a simple majority of the Faculty Practice Board and the CEOofKMC. F. An assessment for administrative expenses shall be made on total Core Physician compensation to support the administrative expenses of the compensation plan. (1) The amount or percentage of the assessment shall be determined annually by the Faculty Practice Board.. (2) Administrative expenses shall include the salary and benefits for the Plan Administrator and any staff hired by KMC to support the Plan Administrator, expenses of the Kern County Pension Plan for Physician Employees, and other business expenses as determined by the Plan Administrator and the Faculty Practice Board. (3) The amount or percentage of the assessment shall not exceed one percent of Core Physician's total compensation (as defined in Article II, Section 2, paragraph B) during the first two years of this Agreement. G. County will cover all professional services rendered by Core Physicians at KMC and at sites designated by the CEO and Plan Administrator under County's liability and malpractice coverage program. Such liability and malpractice coverage program shall not extend to any conduct, actions or activities, which do .not arise directly from the performance of this Agreement. As a matter of law, County shall defend and indemnify Core Physician to the same extent as would be afforded to a regular full-time County employee.

3

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BASE SALARY (ITEMS INCLUDED AND METHOD OF PAYMENT)

A.· Base salary is compensation paid to Core Physician by the County for. (1) patient care for Medically Indigent Adults (MIA), as defined by California Welfare and Institutions Code section 17000 et seq., and adults ahd juveniles incarcerated and detained in County facilities; (2) as a safety-net provider, partial compensation for under-compensated and uninsured patients; (3) teaching; (4) administrative duties; and (5) other activities approved by the CEO of KMC and the Faculty Practice Board. County shall fund the clearing account unit biweekly with an amount equal to Core Physician's biweekly base salary. The base salary, less the assessment for administrative expenses, will be reported as wages and subject to all appropriate federal and state taxes. The base salary will be considered the minimum compensation that a Core Physician shall receive under this compensation plan. B. The base salary will be based on a benchmark salary in proportion to the Core Physician's full-effort commitment. (1) The structure of benchmark salaries is based upon a national standard with four salary steps: "An, "B", "COl and "D." There are three criteria for step placement: level of clinical service, teaching, and administrative duties. This benchmark salary structure and criteria for step placement are set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual. (2) The Faculty Practice Board shall establish the criteria for measuring the full-effort commitment. The Department Chairs, with approval of the Faculty Practice Board, will establish the expected levels of the criteria to meet a full-effort commitment. The criteria for measurement of full-effort commitment is set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual. (3) Research shall not be considered as part of a Core Physician's fulleffort. commitment. Research activity will be compensated as set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual.

4.

PROFESSIONAL FEES

Professional fees include all professional fee collections or payments associated with direct patient care by Core Physician. This shall be· referred to in this Agreement as professional fees. Core Physician, or in cases where Core Physician is part of a practice group entering into an agreement for services with the County, Core Physician's practice group, is responsible for billing and 4

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collecting all professional fees for Core Physician's services. Each Core , Physician or practice group will have a separate tax identification number. Professional fees shall be collected and dispersed as follows:

A.

Professional fee billing by Core Physician or his or her practice group shall be made by a billing service company, approved in advance by the Faculty Practice Board, and based' upon minimum performance standards set by the Faculty Practice Board. All professional fees collected by the billing service for Core Physician (Le., gross professional fees, collected) shall be paid to the clearing account. The billing service will maintain individual and practice group records on professional fee billing and collections and will account for suchto the Plan Administrator. B. The assessment for administrative expenses will be deducted from gross professional fees collected. C. Overhead and expenses for a practice group or a Core Physician who is a sale practitioner, as deterr:nined by an overhead distribution formula established by the Plan Administrator and the Faculty Practice Board, will be deducted from the gross professional fees collected and returned to the practice group or Core Physician who is a sole practitioner. D. Each Department within KMC, at its option, may establish a Departmental, Pool in which a percentage of the remaining gross professional fees collected will be distributed to all Core Physicians within that Department based upon specific criteria approved by the Faculty Practice Board.

E. Gross professional fees collected, less the assessment for administrative expenses, overhead, and an optional Departmental pool (Le., net professional fees collected) will be paid monthly as wages and will be subject to all appropriate federal and state taxes; however, practice groups (consistent with their practice group agreements with the County), Core Physicians who are sole practitioners, or Core Physicians not associated with a practice group may direct the Plan Administrator as to the distribution of net professional fees collected, subject to review by the Faculty Practice Board. 5.

OTHER INCOME

A. Other income IS Income generated due to, the individual's status as a physician, which includes, but is not limited to, royalties, grants, speaker fees, professional witness fees, and other nonprofessional fees.

5

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B. All other income will be paid to the Cqre Physician in accordance with instructions provided the clearing account by Core Physician or Core Physician's practice group. Expenses properly incurred by the Core Physician in. generating other income will be reimbursed to the Core Physician prior to the balance being channeled through the clearing account. This remainder, less assessment for administrative expenses, will be paid monthly to Core Physician as wages. Other income shall be reported as wages and subject to all appropriate federal and state taxes. C. Income generated by a Core Physician that is deposited to the Community Medical Education and Research Foundation ("CMERF") for department educational use shall not be included as other income and shall not be subject to the assessment fot administrative expenses.

6.

PRACTICE GROUPS

A. All practice groups will contract with KMC for the provision of community . clinic services, which shall be integrated into the KMC teaching program. The contract between each pr~ctice group and KMC will define the responsibilities and funds flow, including professional fee distribution, between each organization. B. Practice group overhead and business-related expenses will be paid by the practice group in accordance with predetermined instructions. Practice groups will determine the policy for expense limits and reimbursable items. County is not responsible for the amount of group overhead and business-related expenses claimed.

7.

SOLE PRACTITIONERS

A. Sole practitioners are Core Physicians who are sole proprietors or have their own professional corporation. Core Physicians who are sole practitioners will be responsible for the cost of professional fee billing as negotiated by the Core Physician with the billing service company. Sole practitioner overhead and business-related expenses will be paid by the sole practitioner. Sole practitioners will determine the policy for expense limits and reimbursable items. County is not responsible for the amount of overhead and business-related expenses claimed. B. Any other overhead amount for use of space, supplies and personnel at KMC-owned or -contracted sites will be negotiated with the CEO of KMC.

6

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8.

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OTHER CORE PHYSICIANS Core Physicians who -are not part of a practice group and who are not sole practitioners and who practice exclusively at KMC-owned or -contracted sites will be responsible for the cost of professional fee billing as negotiated by the Core . Physician with the billing seiVice company.

9.

DEPARTMENTAL POOL Each Department of KMC, by simple majority of Core Physicians within that Department, may opt on a yearly basis to participate in a departmental pool. The departmental pool is a group incentive pool funded by net professional fees from a participating. Department to reward· Core Physicians within that Department for activities not recognized by other parts of this compensation plan. Each Department participating in a pool will establish criteria with the approval of the Faculty Practice Board for pool distribution. The percentage of net professional fees to be allocated to the departmental pool will be determined on a yearly basis by the Department with the approval of the Faculty Practice Board. The departmental pool will be distributed quarterly as wages· and will be subject to all appropriate federal and state taxes.

Article III. BENEFITS 1.

EFFECTIVE DATE OF BENEFITS The date of employment for the purpose of receiving and accruing benefits listed in this Article III shall not be affected by the date of this Agreement, but shall be the date the Core Physician was first continuously employed by KMC.

2.

HEALTH INSURANCE County shall provide to Core Physician and eligible dependents medical, dental and vision insurance as provided. to other regular County employees of KMC. Core Physicians first hired by the County of Kern after April 15, 1997 must pay twenty (20) percent of the cost of their health benefits. County may change the benefits proVided under this insurance as such benefits shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

3.

PAID LEAVE OF ABSENCE Core Physician will receive paid leave for holidays, vacation, sick leave and educational leave. 7

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A.

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Holidays:

Core Physician shall be entitled to such holidays as provided to full-time County employees of KMC. County may change the holidays provided under this section as such holidays change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement. B.

Vacation:

For each pay period of service, Core Physician shall be credited with a vacation entitlement of 6.15 hours, for a maximum accrual of 160 hours per year. Total unused vacation accumulated shall not exceed a maximum of 320 hours. No further vacation entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued vacation entitlement shall be credited to a maximum of 320 hours. Unused vacation benefits will be credited to Core Physician to a maximum of 320 hours if this Agreement is renewed. Core Physician will be paid for accrued and unused vacation hours upon termination of employment. C.

Sick Leave:

For each pay period of service, Core Physician shall be credited with sick leave credit for illness or accident of 2.46 hours, for a maximum accrual of 64 hours per year. After five years of employment, including full-time employment prior to the effective date of this Agreement, Core Physician shall earn and accrue sick leave credit for illness or accident at the rate of 3.07 hours for each pay period of service for an annual accrual of 80 hours per year. Total unused sick leave accumulated shall not exceed a maximum of 1152 hours. No further sick leave entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern. accrued sick leave shall be credited to a maximum of 1152 hours. Unused sick leave will be credited to Core Physician to a maximum of 1152 hours if this Agreement is renewed. Core Physician will not be paid for accrued and unused sick leave ·upon termination of employment. County policy applicable to other regular County employees of KMC regarding use of sick leave shall apply to Core Physician. D.

Educational Leave:

Core Physician shall receive 80 hours paid education leave annually. The first 80 hours shall be credited on the effective date of the Core Physician's employment contract. On each successive anniversary date of that contract, an additional 80 hours shall accrue. Education leave must be used within the year that it is accrued and unused education leave does not accrue to the following

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contract year. Unused education leave will not be paid upon termination of employment. All education leave must be approved in advance of use by the Core Physician's Department Chair and the Medical Director.

4.

UNPAID LEAVE OF ABSENCE County shall provide Core Physician the right to unpaid leave of absence provided to other regular County employees of KMC pursuant to County policy. County may change its policy regarding leave of absence, as its policy for leave of absence shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

5.

RETIREMENT PLAN A. Core Physician shall participate in the Kern County Pension Plan and Trust Agreement for Physician Employees (the "Plan"),a qualified defined contribution pension plan, pursuant to the terms of the instrument under which the Plan has been established (the "Plan Document"), as from. time-to-time amended. County shall withhold 3.1 percent of Core Physician's biweekly gross salary (that is, before deductions including taxes) and pay such amount within a reasonable time as the Core Physician's mandatory employee contribution required under the Plan Document. County shall contribute an additional amount equal to 12.5 percent of Core Physician's biweekly gross salary (that is, before deductions including taxes) as County's required contribution under the Plan Document. Total contributions by Core Physician and County will not exceed the yearly amount allowed by law; provided, however, if any amounts are contributed in excess of such permissible amounts, the excess contribution shall be corrected as provided in the Plan Document or under law. Any changes in the Plan Document will control the terms of this Agreement. B. Subject to the receipt ofa favorable determination letter from the Internal Revenue Service, County will amend and restate the Plan Document to substitute a fixed-dollar contribution by County and Core Physician in lieu of the contributions provided in the immediately preceding paragraph A. County and. Core Physician contributions for each Plan' year (as defined In the Plan Document) under the amended and restated Plan document shall be as follows: County shall contribute as County's required contribution the sum of Seventeen Thousand Five Hundred Dollars ($17,500) for the accountof Core Physician for each complete Plan year of service (as defined in the Plan Document) by Core Physician. Core Physician's mandatory employee contributions required under the amended and restated Plan Document shall be as follows: If Core Physician's Compensation (as defined under the Plan Document) was One Hundred Fifty Thousand Dollars ($150,000) or less during the immediately preceding Plan year, Core Physician's mandatory employee contribution required 9

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under the Plan Document shall be $4,000 for a complete Plan year of service by Core Physician. If Core Physician's Compensation was more than One Hundred and Fifty Thousand Dollars ($150,000) but less than One Hundred and Seventy Thousand Dollars ($-170,000), during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Nine Thousand Dollars ($9,000). If Core Physician's Compensation was One Hundred Seventy Thousand Dollars ($170,000) or more but less than One Hundred Eighty Thousand Dollars ($180,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Twelve Thousand Five Hundred Dollars ($12,500) for a complete Plan year of services. If Core Physician's Compensation was One Hundred and Eighty Thousand ($180,000) or more but less than One Hundred Ninety Thousand Dollars ($190,000)during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Seventeen Thousand Five Hundred Dollars ($17,500) for a complete Plan year of services. If Core Physician's Compensation was at least One Hundred Ninety Thousand Dollars ($190,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be the maximum amount permitted by Internal Revenue Code section 415(c)(1 ) (which is currently $40,000) reduced by the County contribution for the account of Core Physician for the Plan year. Core Physician's mandatory employee contributions shall be withheld by County from Core Physician's biweekly salary in relatively equal amounts. Total contributions by Core Physician and County will not exceed the yearly amount allowed by law; provided, however, if any amounts are contributed in excess of such permissible amounts, the excess contribution shall be corrected as provided in the Plan Document or under law. Any changes in the Plan Document will control the terms of this Agreement. County's required contribution for the account of Core Physician and Core Physician's mandatory employee contributions are also subject to all of the transition rules contained in the Plan as it now exists or niay be hereafter amended which may reduce the amount of contribution. The transition rules include, but are not limited to, those contained in sections 3.3(b), 3.3(d), 3.5, and 3.6 of the amended and restated Plan Document. Core Physician (together with all Plan participants) shall be responsible for a pro rata share of the annual costs of administering the Plan. Due to the manner in which Plan participantaccounts are held and invested, most such costs cannot be paid directly from Plan assets. To facilitate payment of such costs, County shall advance such costs for so long as County determines such an arrangement is necessary or desirable. To offset such costs, County shall reduce its contribution to the Plan for Core Physician by Core Physician's pro rata share of such costs as determined under the Plan Document.

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C. If the fixed contribution structure described in the immediately preceding paragraph B results, or would result, in the Internal Revenue Service not issuing a favorable determination letter for the Plan under the amended and restated Plan Document, the County reserves the right to substitute another contribution structure which will be designed to maximize benefit to Core Physician on a costneutral basis to County, and such substitute contribution structure shall control the terms ofthis Agreement. County will consult with the Pension Committee, as identified in the Plan Document, with respect to such substitute contribution structure. D. County's reqUired contribution and all mandatory employee contributions will be paid to such financial services firm(s) as determined under the Plan Document. If, pursuant to the Plan Document, Plan assets are allocated to separate accounts for each Plan participant, such financial services firm(s) shall be solely responsible for allocating Core Physician's contribution amount and investment experience to his or her account. If, pursuant to the Plan Document, Plan participants control the investment of their accounts at such financial services firm(s), the investment of Core Physician's Plan account through such financial services firm shall be determined by Core Physician, County shall not be liable for the investment experience ofeore Physician's Plan account. E. Core Physician is not eligible to participate in any other retirement plan established or funded by the County for its employees, including but not limited to the Kern County Employees' Retirement Association, and this Agreement does not confer upon Core Physician any right to claim entitlement to benefits under any such retirement plan(s). 6.

SOCIAL SECURITY AND MEDICARE TAXES

Core Physician is exempt from payment of Social Security taxes as the Kern County Pension Plan for Physician Employees is a qualified alternative to the insurance system established by the federal Social Security Act. Core Physicians employed before March 31,1986, will continue to be exempt from the payment of Medicare taxes. 7.

DEFERRED COMPENSATION PLAN Core Physician shall be eligible to participate in the Kern County Deferred Compensation Plan I on the same basis and to the same extent as full-time County employees. County may change its Deferred Compensation Plan as it shall change for other County employees of .KMC. Any such change by County shall not be a breach of this Agreement.

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KERN$FLEX PLAN Core Physician shall be eligible to participate in the Kern$Flex Plan I on the same basis. and to the same extent as eligible County employees. County may change its Kern$Flex Plan, as its policy for Kern$Flex shall change for other County employees of KMC.· Any such change by County shall not be a breach of this Agreement.

9.

EXPENSE REIMBURSEMENT A. Core Physician will be reimbursed for approved and necessary expenditures related to continuing education including seminar fees, travel and study materials. Reimbursement for travel, lodging and meals shall be upon the same terms and rates as allowed for County employees of KMC. Core Physician will be reimbursed expenses and materials not to exceed $2,500 per year. B. Core Physician will be reimbursed for approved and necessary expenditures related to education and training as directed by KMC. Reimbursement for travel, lodging and meals shall be upon the same terms and rates as allowed for County employees of KMC. C. County will pay reasonable moving expenses (defined as the moving of household goods and vehicles) for Core Physician to relocate from Philadelphia, Pennsylvania, to Bakersfield, California, in an amount not to exceed Twenty Thousand Dollars ($20,000). Core Physician shall provide three written bids for moving expenses and County shall reimburse Core Physician for the lowest of the three bids. In order to be reimbursed for said moving expenses, Core Physician shall submit the three written bids along with the invoice{s} for actual services performed by the low bid contractor(s).

D. Reimbursement for expenses incurred in generating professional fees will be reimbursed as set forth in Article II, Section 4, above. E. Reimbursement for expenses incurred in generating other income will be reimbursed as set forth in Article II, Section 5, above.

Article IV. TERMINATION AND CORRECTIVE ACTION 1.

TERMINATION OF AGREEMENT A. Core Physician may terminate this Agreement, without cause, upon ninety {gO} days' prior written notice to County.

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B. County may terminate this Agreement at any time for cause. Cause is defined as a violation of administrative policy of the County of Kern or KMC, unsatisfactory clinical performance, failure to meet department accountability or performance standards, or reduction of need. County may terminate this Agreement based upon reduction of need upon ninety (90) days' prior written . notice to Core Physician. C. Termination of this Agreement by County does not per se affect medical staff membership. Actions affecting medical staff membership and clinical privileges· are governed solely by the medical staff bylaws. D. In the event of termination of this Agreernent for any reason, County shall have no further obligation to pay for any services rendered or expenses incurred by Core Physician after the effective date of the termination. Core Physician shall be entitled to receive base salary from County for services satisfactorily rendered, calculated on a prorated basis up to the effective date of termination.

E.

Professional fees earned prior to termination and collected within twelve (12) months of termination will be paid to Core Physician on a monthly basis as collected. These professional fees will continue to be subject to assessment for administrative expenses, overhead distribution formula and/or departmental pool, if applicable, and all appropriate federal and state taxes in effect at the time the professional fees are paid. If Core Physician is a member of a practice group, Core Physician will be paid in accordance with current instructions provided the clearing fund by Core Physician's practice group.

2.

CORRECTIVE ACTION A. Core Physician is subject to corrective action for violation of administrative policy of the County of Kern or KMC, unsatisfactory clinical performance, or failure to meet department accountability or performance standards. Such corrective action may include, without limitation, additional training and education, a verbal or written warning, a written reprimand, suspension with or without pay, and termination. B. Corrective action for unsatisfactory clinical performance is governed by . the medical staff bylaws. C. Corrective action is not required if the problem involves a serious ethical or clinical breach, a violation of law or a serious violation of County of Kern or KMC policy that merits immediate termination for cause.

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REVIEW AND APPEAL PROCESS Review and appeal of the decision to impose corrective action or terminate for. cause shall follow the process set forth in the KMC Faculty Practice Board policy and procedure. titled Corrective Action and Termination Review Process. or the medical staff bylaws. whichever is applicable. Article V. GENERAL PROVISIONS

1.

ASSI.GNMENT Core Physician shall not assign or transfer this Agreement or its obligations hereunder, or any part thereof. Core Physician shall not assign any money due or which becomes due to Core Physician under this Agreement without the prior written approval of County.

2.

ASSISTANCE IN LITIGATION Core Physician agrees to be available to County, at no cost to County, to testify as an expert witness or otherwise, in the event of litigation under any cause of action being brought against County or KMC, its directors, officers or employees except where the Core Physician is a named party. KMC will credit the time spent in preparation and testimony as administrative time as defined in the compensation plan.

3.

AUTHORITY TO BIND COUNTY It is understood that Core Physician. in Core Physician's performance of any and all duties under this Agreement, has no authority to bind County or KMC to any agreements or undertakings.

4.

CAPTIONS AND INTERPRETATION Paragraph headings in this Agreement are used solely for convenience. and shall be wholly disregarded in the construction of this Agreement. No provision of this Agreement shall be interpreted for or against a party because that party or its legal representative drafted such provision, and this Agreement shall be construed as if jointly prepared by the parties.

5.

CHOICE·OF LAWNENUE The parties hereto agree that the provisions of this Agreement will be construed pursuant to the laws of the State of California. This Agreement has been entered

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into and is to be performed in the County of Kern. Accordingly, the parties agree that the venue of any action relating to this Agreement shall be in the County of Kern. 6.

CONFLICT OF INTEREST

The parties to this Agreement have read and are aware of the provisions of section 1090 et seq. and section 87100 et seq. of the California Government Code relating to conflict of interest of public officers and employees. All parties hereto agree that they are unaware of any financial or economic interest of any public officer or employee of County relating to this Agreement. It is further understood and agreed that if such a financial interest does exist at the inception of this Agreement, County may immediately terminate this Agreement by giving written notice thereof. Core Physician shall comply with the requirements of California Government Code section 87100 et seq. during the term of this Agreement. 7.

COMPLIANCE WITH KMC AND COUNTY POLICIES

Core Physician will comply with all applicable KMC and County policies and procedures. Core physician will keep daily time sheets on forms supplied, and in the manner specified, by KMC. Core Physician will conform to office policy and routine as established by the Department of which Core Physician is a member, . including, but not limited to orientation, attendance at case conferences, supelVision, in service education, patients' rights functions and performance. improvement activities. Core Physician shall submit to drug testing, other laboratory testing and physical examinations as may be required by County.

8.

COMPLIANCE WITH LAW

Core Physician shall obselVe and comply with all applicable County, state and federal laws, ordinances, rules and regulations now in effect or hereafter enacted, including but not limited to JCAHO, Title 22, California Code of Regulations, EMTALA, all federal and state billing requirements including MediCallMedicaidand Medicare billing regulations, EEOC, HIPM, FEHA and CalOSHA. Core Physician will at all times meet state and federal licensure and County personnel qualifications for the practice of medicine.

9.

COUNTERPARTS

This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

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EMPLOYMENT STATUS

Core Physician shall be employed by the County of Kern pursuant to the terms of this Agreement and the medical staff bylaws of KMC. Core Physician acknowledges that he or she will not be deemed a classified employee, or have any rights or protections under the County's· Civil Service Ordinance, rules or regulations.

11.

ENFORCEMENT OF REMEDIES

No right or remedy herein conferred on or reserved to County is exclusive of any other right or remedy herein or by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing by law or in equity or by statute or otherwise, and may be enforced concurrently or from time to time.

12.

MEDICAL RECORDS

Any and all patient medic~1 records and charts produced as a result of either party's performance under this Agreement shall be and remain the property of County. During the term of this Agreement, Core Physician shall be permitted to inspect and/or duplicate any patient's medical record or chart to the extent necessary to meet professional responsibilities to such patient and/or to assist in . the defense of any malpractice or similar claim to which such medical record or chart may be pertinent, provided such inspection and/or duplication is permitted and conducted in accordance with applicable legal requirements and pursuant to commonly accepted standards of patient confidentiality. Core Physician shall be solely responsible for maintaining patient confidentiality with respect to any information obtained pursuant to this paragraph and will comply with all federal and state laws and regulations regarding patient confidentiality.

13.

MEDICAL STAFF MEMBERSHIP

Core Physician will at all times be a member in good standing of the medical staff of Kern Medical Center and governed as such by the medical staff bylaws. This Agreement may be immediately terminated if· Core Physician's privileges/ membership are modified or restricted pursuant to action under the medical staffbylaws such that services performed by Core Physician are limited or restricted. Prior to performing duties. Core Physician will complete the following: (a) (b) (c)

Application for medical staff membership; Provide proof of current license from Medical Board of California; Provide proof of current DEA certificate; and

16

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(d)

14.

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Meet with the medical staff office to ensure appropriate documentation is present for credentialing of medical staff privileges.

MODIFICATIONS OF AGREEMENT

This Agreement may be modified in writing only, signed by the parties in interest at the time of the modification.

15.

NON-APPROPRIATION

County reserves the right to terminate this Agreement in the event insufficient funds are appropriated or budgeted for this Agreement in any fiscal year due to closing of a clinical department or KMC. Upon such termination, County will be released from any further financial obligation to Core Physician, except for services performed prior to the date of termination or any liability due to any default existing at the time this section is exercised. Core Physician will be given thirty (30) days' written notice in the event that such an action is required by County.

16.

NON-DISCRIMINATION

The parties mutually agree to abide by all laws, federal, state and local, and by all policies of the County of Kern respecting discrimination. The parties shall not discriminate on the basis of race, color, national origin, age, religion, marital status or sexual preference.

17.

NON-WAIVER

No covenant or condition of this Agreement can be waived except by the written consent of County. Forbearance or indulgence by County in any· regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by Core Physician. County shall be entitled to invoke any remedy available to County under this Agreement or by law or in equity despite said forbearance or indulgence.

18.

NOTICES

Notices to be given by one party to the other under this Agreement shall be given in writing by pe·rsonal delivery, by certified mail, return receipt requested, or express delivery service at the addresses specified below. Notices delivered personally shall be deemed received upon receipt; mailed or expressed notices shall be deemed received four (4) days after deposit. A party may change the address to which notice is to be given by giving notice as provided above.

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Core Physician

County

David F. Jadwin, D.O. 26900 Monet Lane Valencia, CA 91355

Peter K. Bryan Chief Executive Officer Kern Medical Center 1830 Flower Street Bakersfield, CA 93305-4197

PROFESSIONAL RESPONSIBILITIES Core Physician will perform the services and duties set forth in this Agreement in a diligent and conscientious manner in accordance with accepted professional and ethical standards of the medical profession and the medical staff bylaws of KMC.

20.

RELATIONSHIP County and .Core Physician recognize that Core Physician is rendering· specialized, professional services. The parties recognize that each is possessed of legal knowledge and skill, and that this Agreement is fully understood by the parties, and is the result of bargaining between the parties. Each party acknowledges their opportunity to fully and independently review and consider this Agreement and affirm complete understanding of the effect and operation of its terms prio"r to entering into the same.

21.

SEVERABILITY Should any part, term, portion or provision of this Agreement be decided finally to be in conflict with any law of the United States or the State of California, or otherwise be unenforceable or ineffectual, the validity of the remaining parts, terms, portions, or provisions shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to constitute the agreement which the parties intended to . enter into in the first instance.

22.

SOLE AGREEMENT This Agreement, including all attachments hereto, contains the entire agreement between the parties -relating to the services, rights, obligations and covenants contained herein and assumed by the parties respectively. No inducements, representations or promises have been made. other than those recited in this Agreement. No oral promise, modification. change or inducement shall be effective or given any force or effect.

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IN WITNESS TO THE FOREGOING. the parties have signed this Agreement upon the dates indicated. APPROVED AS TO CONTENT: KERN MEDICAL CE

COUNTY OF KERN

KERN COUNTY PERSONNEL

CONTRACT EMPLOYEE

BY·~>-·~

~l~!P vid F. Jadwin. D.o../

Kay F. Madden, Director ty'./I· # -

APPROVED AS TO FORM: OFFICE OF COUNTY COUNSEL

By ~A.~ Deputy . Agreemenl.Jadwin. OB1202

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EXHIBIT "A" JOB DESCRIPTION DAVID F. JADWIN, M.D. PATHOLOGY CHAIRMAN

The pathology chairman shall serve as the medical director for the anatomic pathology service and clinical laboratories at KMC. The pathology chairman will report to the KMC Medical Director. This is a full-time position requiring 48 hours of service, on average, per week. 1. Administrative responsibilities include: The pathology .chairman, together with the laboratory manager(s), will ensure that the Department: a. Is in compliance with federal and state regulations regarding clinical laboratory operation. b. Meets standards for accreditation by the College of American Pathologists (CAP) and the American Association of Blood Banks (MBB). c. Operates within the policies established by KMC and the medical staff bylaws, rules and regulations. . d. Operates effectively and smoothly, and provides timely reports, provided adequate resources are provided. 2.

Administrative duties include:

a. Oversees the development, implementation and maintenance of department policies and procedures for the clinical laboratory and pathology department, including surgical pathology, cytopathology and autopsy pathology. b. Operates and manages the pathology department quality assessment and improvement program. c. Oversees the performance of the clinical laboratory in the CAP laboratory proficiency survey program. d. Ensures that performance deficiencies are addressed in a timely manner. e. Reviews department budgets and major expenditures for appropriateness. f. Monitors performance and prepares annual evaluations for staff pathologists and the laboratory manager. g. Serves as a member of the Medical Executive Committee, the Chairmen's Council, the Faculty Practice Board, the Quality Management Committee, the Blood Usage Committee. and other committees that may be assigned by the president of the medical staff. h. Through participation in the Blood Usage Committee, ensures adequate transfusion service and utilization. i. Coordinates and monitors department faculty involvement in hospital committees.

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j. Conducts and monitors regular department meetings, in compliance with medical staff bylaws, and provides timely department reports, including an annual department report for the medical staff. k. Coordinates medical student and resident. training for students and residents on training rotation within the department. I. Meets with the KMC medical director at least monthly. m. Oversees the scheduling and effectiveness of pathology educational conferences for outside departments, including the oncology conference and the oncology clinic. n. Completes clinical pathology and anatomic pathology service work as may be required. 3.

Teaching duties include:

a. Coordinates and participates in teaching conferences to include weekly gynecology conference, oncology conference, and surgery conference. b. Prepares and presents didactic lectures. c. Actively participates in and presents departmental, interdepartmental,and interdisciplinary programs within KMC. 4.

Patient care duties include:

a. Performs anatomic pathology services as assigned. b. Documents care provided consistent with CMS professional fee billing. 5.

requirements for

Other duties as assigned by the chief executive officer or medical director.

6. A standard workweek will be 48 hours per week. Actual hours may vary week-toweek according to specific assignments; however, the objective is to achieve 2112 worked hours during a twelve-month period.

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REQUEST FOR LEAVE OF ABSENCE

3/~!at:,

DATE

>

(

NAME

o

INITIAL REQUEST DATE LEAVE OF ABSENCE STARTS

:: OF LEAVE:

I EXTENSION REQUEST

DATE LEAVE OF ABSENCE ENDS

I

RETURN TO WORK DATE

(Reference Civil Service Rule 1201.00 et. seq. and Ke.rn Co. Admin. Proc. Manual Chapter 3)

iANDATORY LEAVE FMLAoICFRANon-Job Related/Illness or Disability and re nancy Disability Leave eSR 1201.20 Intermittent-Employee eSR 1201.30 amity Care Leave-FamilyesR 1201.30 Intermittent Leave-Family eSR 1201.30 Compensable Disability eSR 1201.50

OTHER MANDATORY LEAVES Military (Reserve) eSRI201.~0 Family School Activity Leave eSR 1201.60

o

o

o o

JOB TITLE

SOCIAL SECURITY NUMBER

o

:!o

DISCREllONARYLEAVES Personal Necessity eSR 1202.20 Military (Enlistment) CSR 1202.30 Education/Personal Enrichment eSR 120VO Non-Promotional Probationer eSR 1205.00

o

o

o o

L ,

CIFIC REASON FOR LEAVE OF ABSENCE

*

,

2. PAY STATUS ~ithPay ~ick Leave Accrual ,E?vacation Accrual Compensatory Time Catastrophic Leave Without Pay 3. Physician's Note ~Yes 0 No

o

o o

I~ ",,-J~

L

·7

Jest a leave of absence for the reason stated above and understand that I will receive no wages during this absence, Ifall applicable Jals have been exhausted; further, that my rate of pay will be subject to any general increases or decreases in wage rates that become tive during my absence from work: and that my return to work will be subject to employment conditions existing at the time of such 1.

erstand that leaves taken for Non-Job Related/Illness or Disability and Pregnancy Disability, Compensable Disability, orCataslrophic e require verification from a medical doctor of incapacity to perform the job duties and such written verification shall be provided nittently to cover all periods of leave taken. Also, I may be required to pass a medical. physical and lor psychological examination ,(mty expense prior to returning to duty if the illness or disability may affect job performance or the health or safety of fellow workers ~ public. understand that if my leave of absence is approved, the payment of premiums for my medical and dental benefits may become my msibility to continue coverage during the leave of absence. (Contact Health Benefits (868-3182) for information concerning your :JUon and options in this malter.)

Signature of Employee

'RTMENTHEAD RECOMMENDAT~N A.PPROVED

~TAPPROVE6) :ure

f

-
1y

I"

CIVIL SERVICE COMMISSION ACTION

''0

DATE) L OATE

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APPROVED

DATE

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NOT APPROVED

DATE

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8/".1

,

"

lily nntl-;ttedicnl Lem'e .4cr of1993 [ornin Fnmi/.I· Rights Aer

,c 8£.:0 395-5230 \10IOCl) (F,onl)

DISTRIBUTION: WHITE· P€RSONtIEl DEPARTMENT CANARY • HEAlTH BENEFITS

;:'I!:K· At=';::CUHnlG CE.F";;:':T'.~E!:r GOLOENROD·EMPlOYEE

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RULE 1200

LEAVES OF ABSENCE WITHOUT PAY

Page 32 of 93

1201.00 MANDATORY LEAVES OF ABSENCE 1201.10

Noticc of Lca,·c. An)' Counl)' cmploycc rcqucsting a leavc of abscncc without pa}' .under Sections 1201.20, 1201.30, or \'Olulltal)' Ieavc under Scclion 1201.'1.0 shall, when possible, gi,·c noticc of that requcst to UlC appointing aUlhorily, in wriLing, not less than 30 days prior to thc datc tllC Ica,'c is 10 commcncc. Such noticc shall bc forthwilh ronvardcd to tllC Dircclor by tllC appointing autllOril}'. Thc noticc shall bc submilled on a form prcscribcd by tllC Commission and shall spccify tllC Ica,'c to bc lakcn, tllC rcason or rcasons tllCrcforc, and, to tllC cxlcnt possiblc, Ihc beginning and cnding datcs of the Ica,·c. (Rc\'. 8/92)

1201.20

Non-Job-Relalcd IIIncss or DisabililY and PrC!,'11al!c\, Disabilih·. A Counl)' cmploycc shall bc grantcd a Icavc without pay for an incapacilating non-job related illncss or disabililY ofthc cmploycc, including a disability rcsulting from prq,'llancy, childbirlll, or relaled condiLion. Thc Icavc cntilJcmcnt shall bc subjccllo tllC following conditions: (I) 111e ncccssity for UIC Icavc shall bc ccrtificd by a mcdical doctor, who shall also stalc ulat UIC cmployce will bc mcdically ablc 10 return 10 work at tllC expiratioll of UIC leavc pcriod; and, (2) thc Icavc pcriod(s) authorizcd by Rulc 1201.20 shall not cumulati,·cJy cxcced six (6) months during any twelvc (I 2) montll pcriod exccpt as rcquircd by law. (Hc,·.01/97) Usc of tllis Ica,'c is subjcct to IJlC cmployce using all sick lca\'c accrucd prior tOtllC cffcClivc datc of the Ica,'c of abscllcc. Employccs shall bc cntitled to usc anyolllcr acaucd Iea,'c balances, concurrcntly with tllC Ica,'c gi"cn by this scction. Vcrilication from a 111cdical doclor of continued incapacity 10 perform tllc job duties shall bc rcqucstcd by tllC appointing aul1lOrity. Thc employec mar bc required to pass a physical, mcdical and/or psychological examination dcsignalcd by Coullly, at Counly cxpcnsc, prior 10 relurnillg to dUly if the iIIncss or disability may affcct job performancc or thc hcall1l ami safct}' of tllC cmployee, co-workcrs, onhe public. (Rc\,.

01/97)

To thc maximum cxtent pcrmillcd by law, alllea,·cs autllorizcd by tllis Hulc shall run cOllcurrcnlly \\;th Ieavcs takcn pursuant 10 Rulc 1201.30 and shall count against111c twch'c (12) wcek limit contained in Rulc 1201.30. (Re,'. 01/97)

1201.:-30

l\'landalcd Famil\' and Medical Lca\'cs - (Emplorccs and Familr) The purpose of this Rulc is to implcmcntlca\'cs ",hidl arc mandated by the Family and Mcdical Lca,'c Act of 1993 ("gILA") and tllC California Family Hi~hts Act "CFRN'). Eligible cmployces may usc Ica,'cs autllol;zcd by this Hulc on an inlcnnillcIlt basis 10 IJIC exlent that l1lC County is rcquired 10 permit inlcrmillcllt Icaves undcr FML\ all(Vor CFHA. "'hcn permilled, intermillentlca,'c may be laken in periods from onc hour to sC"cral wceks, up 10 a tOlal of '~80 hours· for full-timc employccs and prorated accordingl}' lor part-timccmployces. (Hc\,. 01/97)

0001. 5 01.

eNCL~\::;()£C

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

RULE 1200

Document 277

Filed 12/01/2008

Page 33 of 93

LEAVES OF ABSENCE WITHOUT PAY

F;unily and mcdical IC;I\"cS of abscncc arc ;l\'ailablc Oil an uupaid basis 10 eligiblc cmployccs. In ordcr 10 qualify for a Iea\"c, an cmploycc must: (a) ha\"c bccn cmploycd for atlcastlwch'e (12) moulhs rIlle tweke (12) moulhs do nol need 10 hcconsecuti\"c); ;lIld (b) workcd at Icast 1,250 hours ofsen'ice duriug UIC 12-molllh pcriod illllncclialdy hcforc the commcncemcnt of the Ica\"c. (Rcv. 01/97) An eligible cmployee may request up to Iweh'e (/2) weeks Icavc iu a twckc (12) 1I10nlh period for UIC followiug reasons: I. 'IllC carc of a newborn child; 2. Thc carc of it child who has becu placcd willi an employce lor adoption or foslcr care; 3. The care of a spousc, child or parent (including, but not limilcd to, persons who stand "in loco parcntis") who has aserious hcalth condition; or

:t The serious healLlI condition of UIC e1ihriblc cmploycc which prC\'cIIIs the employec from performing onc or morc of LlIC essential functions of his or hcr job. (HC\'. 01/97) \Vhen both parcnts arccrnplo)'ed by Ihe County, Lllcamount ofleavc for bonding (i. e" birLll, adoplion,or foslcr carc placcmcut) is limitcd to an aghrrcgale of Iwel\'c (/2) wccks, betwccn Lllc parenLe;, in a twelvc (12) month period. For any other leavc aUUlOrizccl by Lllis Rule, cach parcnt is allowed twelve (12) weeks leave, in a tweh'c (12) monLlI period, less any bonding leavc laken by lhat parcnt during thaI lwelve (12) mouLlI period. (12/05) The twelve (12) month period uscd 10 measurc the I,,"ckc (12) week limitation will be thc rolling twelve (12) month pcriod measurcd backward from Llle dale Llle Iea\'c is used, Under UIC rolling twch'e (12) monul period, each time an employce takcs lea\"e, Llle remaining Iea\'e balance consists of the portion of ule twekc (12) weeks thal was not uscd during Llle immedialel). preceding tweh'e (12) months. me\'. 01/9i) Employces shall cxhausl all accrucd sick leave 10 the miL\:imUlll cxtcnl permilled, at the commcncemcnL of LllC Icavc. Employees shall be cntitled 10 use any other accrued Ica\'c balanccs, concurrently willI UIC Ieavc givcn by this section. This Hulc is nol intcndcd to supersede tllC pro\"isions of Kcrn COUlll)' Ordinallcc Code Section 3.28.0·-1-0, which limits Llle ilmOUlll of sick Icavc which all cmployee may use lor illncss of members 01" Ihe employee's immediatc family. (HC\'.O 1/97) If an cmployce requests a Ieavc oue to a serious health coudition 01" lhe employcc or a family membcr, LllC employee must support tllC request wiLll a legally sunicicnt

0001502

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

RULE 1200

Document 277

Filed 12/01/2008

Page 34 of 93

LEAVES OF ABSENCE WITHOUT PAY

ccrLilicalioll isslIcd by Lhc heahh rarc pro\'idcr of Lhc individual willi Lhc serious healLh condition. The appointing ;lUlJlOrity may rcqucsL suhscqucnL re-ccrtilication of mcdical condilions as pcnnilled by law. (Hc\,. 01/97) For leavcs granled duc Lo a serious heahh condilion oflhe employcc, Ihe employec may be rcquired 10 pass a physical, medical and/or psychological cxamination dcsih'llaled by County, at I1lc CounlY's cxpense, prior 10 reLurning for dULy if thc scrious hcalth condilion ma}' a{fecljob perfonnance or lhe hcalLh, sately oflhc employec, co-workcrs or lhe public, (Hc\,.0l/!)7) To the maximum exlenl permilled by law, ;U1Y Icm'c laken by an cmployee undcr lhis or any olhcr Hule or aUlhority shall bc credilcd ag"
Temporal'\' Mililarv Le:l\'c Pursuanlto California f\liIilary and Velcrans Codc sections 395 a1l<1 395.0 I, any Counl)' employec ",hois a member of lhe reser\"c corps of lhe Armcd Forces of lhc Uniled Stiles or of the National Guard or lhc Nm'al Militia, is enLiLlcd 10 a Lemporal}' mililary Ica\'c ofabscnce whilc cngagcd in mililary dUly ordered for LllC purposes of active miliLal1' lraining, inacLi\'c dul)' lraining, encampmelll, lIa\'a[ cruises, special excrcises or [ike aClivil)', prO\'ided lhallhe period of ordercd dUl)' docs noL excced [90 calendar dars, includiug time in\'Oh-cd in going Lo and rClurning from Ihal dul)'; and, provided a copy of Lllc milital)' orders accompany LlIC rcquesl for mililal)' ka\"e. Any cmploree who has becn in LllC scn'icc of Lhc COllnly for al Ieasl one year, immcdiaLely prior lo Lhe dale upon which a Icmporary military Ica\'c ofabscncc bcgins, shall, Lo lhc extenL required by law, be entiLlcd lo receivc his/her salary for LllC firsl 30 calendar days of such leave and, shall accrue the same \'acalion, sick Icavc and holiday pri\"i1eges and LlIC same righls and pri\"ilcges 10 promotion, continuancc in office, cmpioymcnL, rcappoinlmenllo ollice, or rc-cmploymenllhaL lhe cmployee would h;\\,c enjoycd had hc/shc nol been abscnt Lllercfrom; howc\'cr, any lIncomplcLcd probation:uy period musl be complelcd upon reinslalcmenl. (for purposcs of Lllis scclion, in dclermining Ihc one year of sen'ice willi lhe CounLy, all scn'jce of Lllc public cmployee in Ihc rccogllized military sen,icc shall be coullied as CounLy ser\'ice). 11lc cmployce's seniorilY dales (i,e" Counly, Vacation and Incrcmcnl) ",ill nol be adjusled for Llle duration of Llle leave. Thc cmploye-c may utilize \'acation and compcnsatory Limc on' accruals beforc beginning in a non-pay slatus. Nol\\"jlhsLandill~ the abovc, an cmployee 011 lemporary mililary leavc for LllC purpose of "inacti"e dUly lraining" is nol entillcd lo ha\'c auy of his/her salary paid as dcscribcd abO\'e. (Hc\'. /0 I).

1201..1.0.10

}>ursuanllo California MililalT:lnd Veler;lllsCode scction395(c), upon cxpiration of ;lIIY lemporary military leave of abscnce, au cmployce has a righllo be reslored Lo his/hcr fOrlllCr officc or class position and stalus formcrly held by the employee in LlIC same locality and in Lhe same County dcparlmcnt. If lhe ollice or class position

0001.503

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

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RULE 1200

LEAVES OF ABSENCE WITHOUT PAY

Page 35 of 93

has becn abolished or olherwise has ceased 10 cxiSI during the employec's abscnce, hc/she shall be rcinslalcd 10 a position of likc seniority, st;ltuS, and pay if a position exists or, if no posilion exists, thc cmploycc sha/l ha\'c tllC samc rightc; and pri\'ilcgcs lhal hc/she would have had ifhc/shc had occupied lhc dass posilion whcll il ccased 10 cxisl and had nollakcn a tcmporary military lea\'cof abscncc. (Hc\', /0 I) 120 I AS

Othcr Militan' Lcaves Any Counly cmploycc who \'olunlcers for oris rcquired lo scr\'c as a mcmbcr of any branch of the armed forccs (including, bUI nol limitcd to, initial cnlistment), shall bcgrantcd a military leavc of abscncc witholll pay for a pcriod ofone cnlislmenl, nollo cxcccd fivc (5) years' duration, prm'idcd a copy of tllC military ordcrs accompany tllC request for military leavc. Thc cmploycc's scniority elatcs (i,c" County, Vacation and Incrcmcnt) will not be adjustcd for UlC duration ofthc Icavc; howc\'cr, tllC cmployce willnol accrue bcncfits, which arc bascd on mcrit or hours workcd (including, but not limitcd to mcation and sick Icave). IVlilit;Il')' leavcs of abscncc arc gm'crncd by both lhc California l\1ilital')' and Vetcrans Codc scctions 389 ct scq. and Tille 38 oflhc Unitcd Slatcs Code, sections i~30 I ct scq. (Hc\', /01)

120 I A5.1 ()

Pursmmt to titlc 38 of UIC Unitcd Slatcs Codc, section 1312, an cmploycc rcturning from an appro\'cd militaJ)' Icavc of abscncc shall be cntilled to rcturn to his/hcr formcrly held class position wilh the County, without loss of standing, as dcscribcd abovc, providcd thc rcturning cmploycc notilics tllC County of his/hcr intcnt to return to work in accordancc witll UIC noticc prm'isiolls listcd below: An cmploycc who hasbecn on milital')' Ica\'c for less than tllirly-onc (31) days mllst notify tllC County's Pcrsonnel DcpartmclIl,in writing, of his/her intcntto rcturn to work no latcr tlla)) thc beginning of thc first full pay pcriod on UIC first fuJI calendar day following tllC complction of thc pcriod of scrvice and thc cxpiration of cighl hours alicr a pcriod allowing for thc safc lransporlation of the cmployee from tllC placc of scn'icc 10 tllC cmployee's rcsidcncc; or, if ulrough no fault of his/llcr own, thc employcc cannot rcport as scl fortll abo\'c, he/shc must do so as soon as possible. An cmploycc who has becn on military lcavc for more than lhirty (30) days, b)Jlless than 181 days will be retaincd on thc County pa}ToJlin an inactivc status. ·Thc cmployec must notify thc County's Pcrsonnel Dcpartmcnt, in writiJig, of his/llcr. intcntto rcturn to work no latcr than fourlccn (1,1) days aftcr tlle complcLioll oflhc scn·icc; or, if tl Irough no fault of his/llcr own, thc employce is unablc to providc tllC ",rillcn noticc in tllC manner dcscribed, Ulell he/shc must do so by thc lirsl full calcJl(.!ar day possiblc. An employcc ",ho has bccn on mililal')' Icavc for morc than 180 days mustnoLify tllC County, in writing, or his/hcr intcntlo rcturn lo work no later tllan nincly (90) days after complction of the sen·icc. NOlwiulstanding thc foregoing, the Coullty may refuse to re-employ an cmployee rcturning from mililal')' leavc if: 1) Thc Coullty's circumstanccs havc changcd so

0001.504

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

Document 277

Filed 12/01/2008

RULE 1200

LEAVES OF ABSENCE WITHOUT PAY

Page 36 of 93

murh as to makc thc rc-cmploymcnt impossiblc or unrcasonablc; 2) Thc class position from which the pcrson prcviously held has bcen dclclcd atHllhcrc arc no similar or comparable positions; :~) Hc-cmploymcnt would causc undue hardship on thc COllnty; and/or Ii) Thc employmcnt from which thc pcrsoll Jell was for ahrief, non-rccurrcnt period and therc was no rcasonablc expcl"lalion the job ,,;ould continue iJl(lclinitcl}' or for an)' significant pcriod. (Rcv.II/OI) 1201.50

Lc;l\'c lor Compcnsahle Disabililv. County cmployccs shall hm'c an automatic \cave of abscnce from employment during such pcriod as the cmployec is eligiblc to rcccivc temporary disabilily compcnsation undcr thc workcrs' compcnsation laws of thc Statc. Said Ieavc shall aUlomaucally lcrminatc when lhcrightto such compcnsation tcnninalcs, thc cmploycc is dctcrmincd b)' UIC Risk l\1ilnagcmcllt Division of thc Counl)' Counsel's Ol1ice not to bc c1i/,rihlc for workcrs' compcnsation bcnclits, thc cmploycc has heen released to rcturn to work by a doctor aUUlOrizcd by thc Hisk I\'lanagemcllt or a Counl)' doclor, orUlc cmploycc rctires from Coullty sen'ice, whichcvcr occurs firs!. Employecs may usc sick lca\'c during thc Ica\'c herc prm'ic1cd for ill accordancc ",ilh Ordinancc Codc Scction 3.28.110. Employees dclermillcd 1I0t to be eligible for \Vorkcr's Compcnsation bcncfits shall havc all Icavc timc taken undcr Ulis scctioJl cOJlvcrtcd 10 allowablc lca\'es under Scctions 1201.20, or 1202.20 of the Civil Sc....·icc Hulcs, as applicablc. (Rcv.01/97) To thc maximum cxtcnt pcrmiLlcd by law, alllcavcs aUUlOrized by ulis Rulc shall run collcurrently wilh Ieavcs takcn pursuant to Rule 1201.30 and shall COUllt against the twelvc (12) wcck limit containcd in Hulc 1201.30. (Rcv. 01/97)

1201.50.10

Employccs who arc on a compensable disability Iea\'c of abscnce shall submit a slatcmcnt of their condition from ulcir doctor to their appoillting authoril)' as long as the)' rcmain on such Icavc of abscncc. (Rcv. 8/92)

1201.50.20

i\ny cmploycc who is gralltcd a scn'ire-conncctcd disability retircmcnt 'Uld who later is dctcrmincd by the Rctircmcnt Board to bc no longcr in('apacitate(\;md who dcsires to rcturn to acu\'c Count)' cmploymcnt and·is re-cmploycd shall bc decmcd to havc bccn on an approvcd lca\'c of abscnce withoul pay for thc pcriod of Limc hc/shc rccci\'cd said sen,j('c-conncclcd disability. (Rc\'. 8/92)

1201.GO

Familv School And Liccnscd Child nay Care Activitv Leavc. Any fun-time or part-time County cmploycc who is a parcnl, /",.mrdian or grandparent WiUl custody of a child in gradcs Kindcrgartcn uuough Twch'c or allcnding a liccnscd child day carc facility, shall bc cntiucd to, upon propcr wriUcn requcst to thc appointing authority, a )ca\'c froril work up 10 a maximum of forty (:to) hours pcr ycar, but no more Ulan cight (8) hours ill any calendar mOllth, to participatc ill UIC artivitics of UlC school or liccnscd child carc /:lCilily of any of his or hcr childrcn. The cmployee shall use vacation, compcnsatory time-olr or an)' othcr paid leave allowallces othcr Ul,l\l sick IC;l\'c. If the employcc has

0001505

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

Document 277

Filed 12/01/2008

KERN COUNTY PERSONNEL DEPARTMENT REQUEST FOR LEAVE OF ABSENCE

(_<_P_C!-_·~ __·~--r~7-7r-----'------'--

:>ARTMENT _ _

DATE

SOCIAL SECURITY NUMBER

o

DATE LEAVE OF ABSENCE ENDS

o

_

RETURN TOWORK DATE

(Reference Civil Service Rule 1201.00 et. seq. and Kern Co. Admin. Proc. Manual Chapter 3)

MANDATORY LEAVE FMLA·/CFRA...· ~ Non-Job Relatedllilness or Disability and

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EXTENSION REQUEST

DATE LEAVE OF ABSENCE STARTS

,

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JOB TITLE

INITIAL REQUEST

PE OF LEAVE:

Page 37 of 93

OTHER MANDATORY LEAVES

o

o

'pregnancy Disability Leave CSR 1201.20 Intermittent-Employee CSR 1201.30 Family Care Leave-Family CSR 1201.30 Intermittent Leave-Family CSR 1201.30 Compensable Disability CSR 1201.50

o o

~ECIFIC REASON

2. PAY STATUS

Military (Reserve) CSR1201.40 Family School Activity Leave CSR 1~01.60

OWithPay Sick Leave Accrual Vacation Accrual Compensatory Time OCatastrophic Leave

o o o

DISCRETIONARY LEAVES

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Personal Necessity CSR 1202.20 Military (Enlistment) CSR 1202.30 Education/Personal Enrichment CSR 1202.40 Non-Promotional Probationer CSR 1~05.00

~ithoutPay

3. Physician's Note ·~es DNa

FOR LEAVE OF ABSENCE

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equest a leave of absence for the reason stated above and understand that I will receive no wages during this absence, If all applicable :cruals have been exhausted; further, that my rate of paywill be SUbject to any general increases or decreases in wage rates that become fective during my absence from work; and that my return 10 work will be subject to employment conditions existing at the time of such tum. Inderstand that leaves taken for Non-Job Related/Illness or Disability and Pregnancy Disability, Compensable Disability, or Catastrophic ~ave require verification from a medical doctor of incapacity to perform the job duties and such written verification shall be provided termiltently to cover all periods of leave taken.. Also,l may be required to pass a medical, physical and lor psychological examination : County expense prior to returning to duty if the illness or disability may affect job performance or the health or safetyof fellow workers • the public. 31so understand that if my leave of absence is approved, the payment of premiums for my medical and dental benefits maybecome my lsponsibility to continue co~erage during the leave of absence. (Contact Health Benefits (868-3182) for information concerning your bligation and options in this matter.)

cs

APR 2 6 ~

DATE

o

DATE

NOT APPROVED

ignature , Fam;~I' mId Medical Len\'e Act of 1993 •• Californin Fami(I' R(f{ll/s Act

Signature of Employee

CIVIL SERVICE COMMISSION ACTION

,EPARTM EHT HEAD RECOMMENDATION

o APPROVED

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APPROVED

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NOT APPROVED

DATE

_

DATE

_

Signature DISTRIBUTION:

000:150' INSTRUCTIONS ON REVERSE SIDE

WHITE. PERSONNEL oeP"'RTM~NT CANARY - HEALTH BENEFITS

F:NK. ~?~Jt~T't:G OEPAF.n.~EtlT GOLOENROD· EMPlOyEE

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

Document 277

Filed 12/01/2008

Page 38 of 93

KERN MEDICAL CENTER ADMINISTRATION OFFICE MEMORANDUM

C-O-N-F-I-D-E-N-T -I-A-L TO:

David Jadwin, D.O. Chairman, Department of Pathology

::::~: :::~c:

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DATE: April 28, 2006 .... ~

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CEO

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brie~ng

The purpose of this memorandum is to summarize our today concerning your medical leave of absence. In attendance were you, Karen Barnes, Steve O'Conner, and I. I provided you with the summary ofyour medical leave history (see attached). This packet contain~ the calculations and policies related to how the County ofKem handles medical leaves. In essence, you have 137 hours available to be taken before you hit the 480-hour limitation. Medical Leaves also run for a maximum of six months so this criterion sets June 16, 2006 as the last day available to you under this status. You said that you did not have any questions and I referred you to Human Resources, Steve 0' Conner, should you have any questions about how to interpret the leave provisions. You also mentioned that you were scheduled to work on Monday May 1,2006 and asked if! wanted you to be present. You also indicated that from that date, you would be out until further notice. I left the option of working on Monday to you and asked that you coordinate with Dr.. Dutt about coverage. I also mentioned that after Monday it would be preferable for you not to have an intermittent work schedule and it would be easier on the department to just have you on leave until your status is resolved. Finally, I said that by June 16, 2006 you needed to give me your decision about your employment status. Your options were to either return full time or resign your position. As chairman, your department and the hospital needs you here full time. You indicated that you understood the deadline. PKB:abra O:\Pcrsonnel\042806Jadwin.doc cc: Karen Bames, Deputy County Counsel Sandra Chesler, Chief Operating Officer

0001.507

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

Document 277

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Page 39 of 93

CONFIDENTIAL

0001.508

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

Document 277

Filed 12/01/2008

Page 40 of 93

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Case 1:07-cv-00026-OWW-TAG Document 277 DEPARTMENT Filed 12/01/2008 KERN COUNTY PERSONNEL

Page 41 of 93

REQUEST FOR LEAVE OF ABSENCE .,vlENT

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J

JOB TITLE

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INITIAL REQUEST

DATE LEAVE OFABSENCE STARTS

EXTENSION REQUEST

DATE LEAVE OF ABSENCE ENDS

RETURN TO WORK DATE

(Reference Civil Service Rule 1201.00 et. seq. and Kern Coo Admin. Proc. Manual Chapter 3)

YPE OF LEAVE:

I. MANDATORY LEAVE FMLA*/CFRANon-Job RelatedllJlness or Disability and e. nancy Disability leave CSR 1201.20 Intermittent-Employee CSR 120UO amily Care Leave-Family CSR 1201.30 Intermittent Leave-Family CSR 1201.30 Compensable Disability CSR 1201.50

OTHER MANDATORY LEAVES Military (Reserve) CSRl20140 Family School Activity Leave CSR 1201.60

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DATE

:!

DISCRETIONARY LEAVES Personal NecessitycsR 1202.20 Military (Enlistment) CSR 120230 Education/Personal Enrichment CSR 120VO Non-Promotional Probationer CSR 1205.00

o o

o

o o

.,

2. PAY STATUS ~ithPay ~ick leave Accrual . ,E?Jacalion Accrual Compensatory Time Catastrophic Leave Without Pay 3. Physician's Note ~Yes 0 No

o

o o

L I;? /. 1-i-t.. l . 7

r

;PECIFIC REASON FOR LEAVE OF ABSENCE

·equest a leave of absence forthe reason stated above and understand that I will receiveno wages during this absence,lf all applicable ::cruals have been exhausted;further, that my rate of pay will be subject to any general increases or decreases in wage rates that become iective during m:y absence from work: and that my return to work will be subject to employment conditions existing at the time of such ·!um. ~nderstand

that leaves taken for Non-Job Related/lilness orDisabilityand Pregnancy Disability, Compensable Disability, or Catastrophic lave require verification from a medical doctor of incapacity to perform the job duties and such written verification shall be provided ~ermitlenlly to cover all periods of leave taken. Also, I may be required to pass a medical, physical and lor psychological examination County expense prior to returning to duty if the illness or disability may affect job performance or the health or safety of fellow workers the pUblic. Iso understand that if my leave of absence is approved. the payment of premiums for my medical and dental benefits may become my iponsibilily to continue coverage during the leave of absence. (Contact Health Benefits (868-3182) for inforl11ation concerning your ligation and options in this mailer.)

Signature of Employee CIVIL SERVICE COMMISSION ACTION

P&ARTMENTHEADRECOMMENDATiJN APPROVED

DATE

?j

I"·'V ) L

I

N TAPPROVED} lature

I

_/.!!

DATE

C . .-'. i ' ,

·nmity nntf-:>Tedicn/ Lemoe Act 01/993 ·nlifornin Fnm;~I' Rights Act .'80 8!:-'0 39S-5230(10!OO)(Fron'l

_

o o

APPROVED

DATE

_

NOT APPROVED

DATE

_ _

Signature~

0001.51.0 INSTRUCTIONS ON REVERSESIDE

DISTRIBUTION: WHITE ·PERSOIItIEL DEPARTI.tEIIT CANARY .HEALTH BENEFITS FH:K ~;"PPCItHIUG DE.?ARiUE~H

GOLDENROD·EMPLOYEE

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

Document 277

Filed 12/01/2008

Page 42 of 93

KERN COUNTY PERSONNEL DEPARTMENT REQUEST FOR LEAVE OF ABSENCE

_(2._~_. __ k>-r7-+'1_-_--'-------'-~

t:._=_D_,

DEPARTMENT _ _

(

DATE

SOCIAL SECURITYNUMBER

o

INITIAL REQUEST

\J.1EXTENSION REQUEST I'

DATE LEAVE OF ABSENCE eNDS

DATE LEAVE OF ABSENCE STARTS

(3J~J&t) , TYPE OF LEAVE:

JOB TITLE

i-;-s-

--

RETURN TOWORK DATE

Cf-=jt. - b~

tJl.,

(Reference Civil Service Rule 1201.00 et. seq. and Kern Co. Admin. Proc. Manual Chapter 3)

OTHER MANDATORY LEAVES Mililary (Reserve) CSR 120140 Family School Activity Leave CSR 1201.60

1. MANDATORY LEAVE FMLA*'CFRA ~On-JOb Relatedllllness or Disability and regnancy Disability Leave CSR 120120 Intermittent-Employee CSR 1201.30 0 Family Care Leave-Family CSR 1201.30 Intermittent Leave-Family CSR 1201.30 0 Compensable Disability CSR 1201.50

o o

H

o o

DISCRETIONARY LEAVES Personal Necessity CSR 1202.20 Military (Enlistment) CSR 120230 Education/Personal Enrichment CSR 1202.40 Non-Promotional PrObationer CSR 1205.00

o o o o

SPECIFIC REASON FOR LEAVE OF ABSENCE .

___=1;r J t-W-n= Y

/2

.

~

2. PAY STATUS DWithPay Sick Leave Accrual Vacation Accrual Compensatory Time Catastrophic Leave

o o o o

~ithoutPay

3. Physician's Note

~es oNo

~

~~__ . jda:J;_.. ~_/-::----:>....--_~ ~V'

.

_

G_r_Lj-f-._t<--__'

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_

I

I request a leave of absence for thereason stated above and understand that I will receive no wages during this absence, If all applicable accruals have been exhausted; further, that my rate of paywill be subject to any general increases or decreases in wage rates that become effective during my absence from work; and that my return to work will be subject to employment conditions existing at the time of such retum. Iunderstand that leaves tak~n forNon-Job Relatedllliness or Disability and Pregnancy Disability, Compensable Disability, or Catastrophic Leave require verification from a medical doctor of incapacity to perform the job duties and such written verification shall be provided intermittently to cover all periods of leave taken. Also, I may be required to pass a medical, physical and lor psychological examination at County expense prior to returning to duty if the illness or disability may affect job performance or the health or safety of fellow workers or the public.

I also understand that if my leave of absence is approved, the payment of premiums for my medical and dental benefits may·become my responsibility to continue coxerage during the leave of absence. (Contact Health Benefits (868-3182) for information concerning your obligation and options in this matter.)

APA 2 6 2Xl6

c:::=:-1 II. ~ n~ ~~J~_. ~

DATE

o NOT APPROVED

DATE

Signature

or Employee

CIVIL SERVICE COMMISSION ACTION

DEPARTMENT HEAD RECOMMENDATION o APPROVED

Signature

_ _ _

o APPROVED

DATE

_

o

DATE

_

NOT APPROVED

Signaturec--

_

000151.1.

, Fami~)" and Medical Lem'e Act of /993 ,. California Fallli~I' Rig/liS Act

INSTRUCTIONS ON REVERSE SIDE

DISTRIBUTION; WHITE·PERSONNElDEPARTP.tEIIT CANARY· HEALTH BENEFITS PIIIK· A?Pon~TltjGDEPARTMEtlT GOLDENROO·EMPLOYEE

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

BW

REG

05-25 05-26 06-01 06-02 06-03 06-04 06-05 06-06 06-07

'1/ /'f

1'0:

B/2

C/3

S/L

0 _ \.-;r LU k 'J.Qt aYI w.'l

40.0 57.5 60.3 41.5 16.0 12.0· 17.7' 30. O.

~

6.2 1.5 7.0

16.1 2.5

=====

=====

=====

=====

.0

.0

34.6

.0

59.7

.0

~/ it P1~ tuw M'J 4~u

=

Cv\t{~ ~

CTT

TOTAL

=====

80.0 57.7 59.7 60.3 41.5 38.3 16.0 41.8 30.0 ======

.0

;<

17 .1

=====

12./~ _ (2·/Z:) ~'?

~iL-tlfN - L ~b.pO'

~

16.0 8.0

..-3;3-r:'O

, 7J &j

~

8.0 9.7 2.2

OT

===:.=

D?/25

en

VAC

==::=

:2q J

o o o

FSL

Filed 12/01/2008

Page 43 of 93

8997

376-50-8177

JADWIN DAVID FRANK

Document 277

VACATION EARNED

S/L EARNED

VACATION BALANCE

S/L BALANCE

CT EARNED

5.23077 3.77269 3.90346 3.94269 2.71346 2.50423 1.04615 2.73307 1.96153

3.07000 2.21423 2.29098 2.31401 1.59256 1.46976 0.61400 1.60407 1.15125

9.78148 5.55417 9.45763 13.40032 16.11378 2.51801 1.06416 2.79723 4.75876

9.73040 2.24463 2.33561 4.64962 6.24218 1. 51194 0.62594 1.63001 2.78126

0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0

,4.2~j'

316"

q~ .~ - YCGa ~W e~ {s ,'()01',tt)

C BA O •. O. '

O. I O. ( O. (

O. (

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o. (

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

Document 277

Filed 12/01/2008

Page 44 of 93

1

141009 1 1 1

contract year. Unused education leave will not be paid upon termination of employment. All education leave must be approved in advance of use by the Core Physician's Department Chair and the Medical Director.

4.

1 1

UNPAID LEAVE OF ABSENCE

county shall provide Core. Physician the right to unpaid leave of absence provided to other regular County employees of KMC pursuant to County policy. County may change its policy regarding leave of absence, as its policy for leave of absence shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

5.

1

1 1 1 1

RETIREMENT PLAN 1

A. Core Physician shall participate in the Kern County Pension Plan and Trust Agreement for Physician Employees (the "Plan"), a qualified defined contribution pension plan, pursuant to the terms of the instrument under which the Plan has been established (the "Plan Document"), as from time-to-time amended. County shall withhold 3.1 percent of Core Physician's biweekly gross salal)'(that is, before deductions inclUding taxes) and pay such amount within a reasonable time as the Core Physician's mandatory employee contribution reqUired under the Plan Document. County shall contribute an additional amount equal to 12.5 percent of Core Physician's biweekly gross salary (that is, before deductions including taxes) as County's required contribution under the Plan Document. Total contributions by Core Physician and County will not exceed the yearly amount allowed by law; provided, however, if any amounts are contributed in excess of such permissible amounts, the excess contribution shall be corrected as provided in the Plan Document or under law. Any changes in the Plan Document will control the terms of this Agreement.

1 1 1 1 1 1 1 1

B. Subject to the receipt of a favorable determination letter from the Internal Revenue Service, County will amend and restate' the Plan Document to substitute a fixed-dollar contribution by County and Core Physician in lieu of the contributions provided in the immediately preceding paragraph A. County and Core Physician contributions for each Plan yea( (as defined in the Plan Document) under the amended and restated Plan document shall be as follows: County shall contribute as County's required contribution the sum of Seventeen Thousand Five Hundred Dollars ($17,500) for the account of Core Physician for each complete Plan year of service (as defined in the Plan Document) by COfe Physician. Core Physician's mandatory employee contributions required under the 3mended and restated Plan Document shall be as follows: If Core Physician's Compensation (as defined under the Plan Document) was One Hundred Fifty Thousand Dollars ($150,000) or less during the immediately preceding Plan year, Core Physician's mandatory employee contribution required

1 1 1 1 1 1 1 1

9

0001.51.3 .

1

1

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

RULE 1200

Document 277

Filed 12/01/2008

Page 45 of 93

LEAVES OF ABSENCE WITHOUT PAY

1201.00 I"'JANDATOHY LEAVES OF ABSENCE 1201.10

Noticc of Lca\'c. Any Count)'cmploycc rcqucsling a IC;I\'c of absence without pay ulllb Sl:djons 1201.20, 1201.30, on-olullta!')' leave umler Section }20 1.,'10 shall, when possiblc, gi\'c noticc of that rcqucstlO Ihe appointing authority, in writing, 1I0tiess than 30 days prior 10 the date LJIC lea\'cis 10 commcncc. Such lIoticc shall bcforLJlwith forwarded 10 UtC Director by the appointil 19 autllOrity. The notice shall be suhmillcd on a form prcscribcd by UIC Commission and shall spccify t1IC lea\'c to bc lakcn, UIC rcason or rcasons Ulcrcforc, and, to t1le cxtent possible, tIle beginning and CI lding dales of thc Ica\'c. (He\,. 8/92)

1201.20

Non-}oh-Hclatcd IIIncss or Disabilit\' and Prq,'Jlanc" Dis;,bilit\·. A Counly cmployee shall bc granted a lea\'c without pay for an incapacitating non-job relatcd illness or disability ofthc cmploycc, including a disability resulting from prcgnancy, childbirul, or relatcd condition. The Ica\'c entitlemcnt shall he subjcct to LJlcfollowing conditions: (I) thc nccessity for tllC Iea\'c shall bc ccrtificd by a mcdical doctor, \\,ho shall also stale LJlat tlIC'; clllpluycc will bc mcdically aule to returll to work at tllC expiration of tllC ka\'c period; and, (2) thc Iea\'c period(s) aut1lOrizcd by Hulc 1201.20 shall not cumulatively cxceed six (6) months during any twel\'c (12) montll period exccpt as required by law. (HC\·. 01/97) lIsc of t1lis lea\'c is subjcct to tllC cmployce using all sick Iea\'c accnlcd prior to the cffeCli\'c date of thc Iea\'c of abscllcc. Employccs shall bc cntitlcd to usc any othcr accrued lea\'c balanccs, concurrcntly with LJIC Ica\'c gi\'cn by this scction. Vcrilic;ltion from a medical doctor of continued incapacity to perform tllC job dUljcs shall!.>c rcquested by tllC appointing aUlhority. Thc employec lIlar bc requircd to pass a physical, mcdical alldlor psychological cxamination desi,!,'llaled by County, at Counly cxpensc, prior to returning to uuty if thc illness or disability may alTectjob performancc or thc hcalt11 and safcty of tllC cmployee, eo-workcrs, or t11C public (Hc\,.01/97) To the maXill1ll1l1 cxtent pcrmitlcd by law, alllca\'{~s authorizcd by t1lis Hulc shalll1.lIl concurrcntly \\;th Ica\'cs takcn pursuant to Hule 1201.30 and shall count against thc twelrc (12) wcek limit containcdin Hulc 1201.30. (He\·, 01/97)

1201.:~O

t\J;lIIdatcd Famih' and ivledicaJ LC;I\'cs - (Emplorccs and Famild 'I 'he purposc of lhis Hulc is to implemcnt lean~s which are lIland;ltcd by thc Family and Mcdical Lea\'c Act of 1993 ("F~IL.A") and LJIC C;I1ilornia Family Hights Act "CFRN'). Eli,!,~hlc cmployccs may lISC 1c;I\'cs aut1lorized by ulis Hulc 011 an intcrmiltcllt basis to thc extcnt that thc Counly is rcquircd to pcrmit intcrmiltcnt lea\'cs undcr I'M LA and/or CFI0\. \VhclI pcrmiltcd, illtcnnitlcnt learc lIlay bc lakcn in pcriods fromonc hour (0 se\'cral wceks, up (0 a lotal of ·j·80 hours for full-timc cmployees and prora(cd accordingly lor part-timc employccs. (Hc\,. 01/97)

00015j.4·

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

RULE 1200

Document 277

Filed 12/01/2008

Page 46 of 93

LEAVES OF ABSENCE WITHOUT PAY

Family alld mcdical Ieavcs of abscncc arc ;I\'ailablc 011 all ullpaid basis 10 eligible cmployecs, III ordcr 10 qualify for a Iea\'c, all cmployec musl: (a) ha\'c bccn cmploycd for atleasl lwdvc (12) mOIlI1,s (rhc twelvc (12) mOlllhs do !!illllccd 10 bc COIISCCUU\'c); and (b) workcd at least 1,250 hours of scn'icc during thc I 2-muJllh pcriod immcdialely before UIC commcllccmcnt ofthc leave, (Hc\', 01/~)7) :\ n c1igi hlc cmploycc may rCCJllcslllp 10 I\\'ch'c (12) wccks 1c;I\'c in a twelvc (I2)molllh period for tJIC following reasoJlS: I, Thc carc of a ncwborn child; 2. Thc careol" a child who has bccn placcd wiul an cmploycc for adoption or fostcr carc; 3. Thc carc of a spousc, child or parcnt (including, bUI not limitcd to, pcrsons who stand "in loco parcntis") who has a scrious hcalth colldiuon; or

·L Thc scrious hcalth condition of thc eligible cmploycc which prc\"Cllts thc cmployce from performing onc or morc of UlC esscntial funclions of his or hcr job, (Hc\', 01/97) \Vhcn both parellts arc cmployed by UIC CoulIly, UIC amoullt ortca\"c for bonding (j; c., birul, adoption, or fostcr care pbcemcnt) is limitcd to all aggrcgatc of twelrc (12) \rccks, betwcen U'C parcnts, ill a twckc (12) monU1 pcriod. For allY oUlcr Icarc auulOrizcd by Lhis Hule, cach parcnt is allowed twelve (12) wccks IC;I\'c, in a twelre (12) 11101lU, pcriod, less any bonding lea\'c takcn by Ih;,t parellt during thattwcl\"c (12) 1110nth period. (I 2/05) Thc twch'c (12) month period uscd to mcasurc thc twch'c (12) wcck limitatioJl will hc Lhe rolling twch'c (12) monu, period mcasurcd backward from the datc thc !ca\'c is lIsed. UIIdcr UIC rollillg twch'c (12) monlh pcriod, cach limc an cmploycc takes leave, lhe rcmaining learc balancc consists of UIC porlionof thc lwch'c (12) wccks that was not lIscd d ming U'C immcdiately prcceding twcke (12) months. (HC\'. 01/97) . Employccs shall exhaust all accrued sick Ieavc 10 the m;L\:imum cxlcllt pcrmillccI, ;Iltlle COlllnJCllccmcnt of UIC lean:. Employccs shall be elltitled to usc ilny oth<:r accrucd !c;\\,c balances, concurrcnuy WiUI UIC Icavc gi,'clI by this section. This Hulc iSllol intcnded to supcrsedc u,c pro\'isiolls of Kcrn County Ordinancc Codc Section 3.28.010, which limits u'c amount of sick lea\'c which an cmploycc ma}' usc lor illncss of mcmbers of the cmploycc's immcdiatc family. (He\', 01/97) If an cmployec rcqucsts a Iea,'c due to a serioushcalth condition ofLhccmployec or a I;unily lllCIll bcr, UIC cm ployec IJ1 ust su pport UIC request with a lega II)' sufficicnl

0001.51. 5

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

RULE 1200

Document 277

Filed 12/01/2008

Page 47 of 93

LEAVES OF ABSENCE WITHOUT PAY

n:rlificalion issued by lhe heahh carc prm'ider of lhc individual will uhc serious heallh cond ilion. Tllc appointing aUlhorily mar rcquesl subscqucnl re-ccrtilicatioll of mcdicill mlidilions ;IS pennilled b}' law. (Hc\'. () 1/97) For ka\'es granlcd duc 10 a serious heahh condition of the cmployee, lhc employee may be required 10 pass a ph)'sical, medical and/or psychological cxamination dcsignaled by Counl}', at thc COllnly's cxpcnsc, prior 10 rClurning for dULl' if lhc scrious hcallh condition may aOcctjob performancc or thc hcalth, satel)' of llic cm ployec, co-workers or lhe public. (He\,. 01/!}7) To lhc maximum cxtcnl pcrmillcd by law, ;Ulr !c;I\'c lilken by an cmploycc undcr 1I1is or any olhcr Rulc or authorilY shall bc crcdilcd ag
120lAO

TemJlorar\' Militarv Lca\'c Pursuallilo California l\Iililarr alld VClcrans Codc SCCtiOIlS 3!}S alld 395.01', any County cmployce who is a mcmbcr of lhc rCSCITC corps of thc .\nncd Forccs of lhc Unilcd Stales or of 1I1c National Guard or thc Na\'al i\lilitia, is cnlillcd to a tcm porar)' mililalJ Iea\'c of abscncc whilc cngagcd illmililarr duty ordcrcd for thc purposcs of ;ICti\·C military trailling, inactivc dutr training, Cnc;Un!Hllellt, na\'al cruises, special cxcrci'scs or likc acti\'ily, prO\'idcd t.hallhc pcriod ofordercd dUly docs nol excccd 190 calendar days, including timc in\'oh'cd in going 10 and reluruing from lhal duly; and, prO\'idcd a copr of 1IlC militalT ordcrs accompany lhc rcqucst for milil;lI)' Ieavc. Any cmploycc who has bccn ill UIC scn'ice of lhc Counl)' for at Ieasl OIlC ycar, immcdialcly prior 10 lhc dalc UpOll which a lcmpor;IIT mililiuy Ica\'c of abscncc bcgins, shall, 10 1I1c cxtcnl rcquircd by la\\', bc entiucd 10 rccci\'c Ilis/her salary for 1IlC firsl.30 calendar days of such Iea\'c and, shall accrue UIC samc \'acalion, sick Ica\'c and holiday pri\'ilegcs and 1I1e samc righls and pri\'ilcges 10 promotion, colltilluailCc in ollicc, employment, rcappoinlmclltlo oflice, or re-employmclltUlal UIC cmploycc would ha\'e cnjoyed had hc/she nol bccn abscnlUtercfrom; hO\\'c\'er, ;U1y uncompletcd probational)' period must be completcd upon rcillslatcmcnl. (fl)r purposcs of ulis seclioll, in dclcrmining UIC onc year of scrvicc wilh lhe Coullly, all sen'ice of lItC public cmploycc inlhe rccognized mililary scrvice shall bc coulltcd as COli/II)' scrvice). Thc cmployce's sellioril)' dalcs (i.c., COUllty, \'acalion ami Incrcmcnl) will nol be adjustcd lor thc duration of 1IlC Ieavc. Thc cmployec ma)' ulilize \,;\calion and compcnsatory limc oIl" accruals bcfore beginning in a non-pay slatus. N olwilllsianding thc aho\'c, an Clilplo}'ce 011 lemporal r lIIilitary lea\'c for lhc purpose of"inaclj\'c dUl}' trailling" is not. cntitled 10 ha\'e all}' or his/llcr salary paitl as describcd abo\'c. (Hc\'. /0 I).

1201..1·0.1 ()

Pursuanllo Califomia j\Iililal)' and Vctcrans Codcseclion 395(c), upon cxpiralion of an}' tcmporary mi/itarylea\'c of ahsellCc, an cmployec has a right 10 bc rcstorcd 10 his/hcr fOrlncr officc or class posilion and slat us formcrly held by t.hc cmploycc in 1I1e same localily and ill Ihc same Coullty deparullcnl. If thc orJice or class posilioll

000:151.6

·

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

Document 277

Filed 12/01/2008

RULE 1200

LEAVES OF ABSENCE WITHOUT PAY

Page 48 of 93

'

has hccn abolishcd or othcrwisc has ccaseel to cxist e1l1rin~ thc cmplo)'ec's ;lhsencc, hc/shc shall hc rcinstatcd 10 a position of like scniority, st;ltus, and pay if a position exists or, if no position cxists, thc cmploycc shall ha\'c thc samc righL~ and pri\'ilcgcs lhat hc/shc would h;l\'C~ had if he/shc had occupied the class position when it ceaseel to cxist ;lIId had notlakcn a tClllporary milital1' Ica\'c of abscncc, (He\', /0 J)

120 I AS

Olher T\fililarv Lcavcs Any Count}' cmplo)'ee who mlllntccrs for or is required to sc.....c as a mcmbcr of an}' branch of thc armcd forces (including, 'but not limilcd to, initial enJi5IJllcI1I), shall bc granted a militall' /ca\'c of absencc \rithoLJt p;iy for a pCl'iodof OIlC cnlistmcnt, not to cxcccd firc (5) ycars' duration. prO\'idcd a copy of the miJitall' ordcrs accOlnpany thc rcqucst for military !carc, Thc cmplo)'ec's scniority dates (i,c., County, Vacatioll and Illnemcnt) will not bc adjustcd for UIC duration ofthc Ica\'c; howc\'cr, tJIC cmplo}'ce will not accruc hcncfits, which arc bascd ollmcrit or hours workcd (including, but not limitcd to \'acation amI sick leal-c), Xlilitary !carcs of abscncc arc gO\'crucd by hath tJIC California Mililall' alld Vctcrans Code scctions 389 ct scq. and Titlc 38 ofthc lJllilcd Stalcs Codc, scctions ,130 I ct scq. (Hc\', /0 J)

1201..15.10

Pursuant to tiuc 38 of thc Ullitcd Slatcs Code, scction '1312, an cmploycc relurning from an approvcd military Ica\'c of abSCllCC shall be clltitled to rcturn to his/hcr formcrly held r1ass position with the County, without loss of standing, as dcscribcd ' abo\'c, prO\'idcd tllc rClurning cmploycc notifics UIC County of his/ltcr intcnt to rcturn to \\'ork ill accordancc with UIC not icc provisions listed bclO\r: All cmploycc wlto has bccn on mililary lea\'c for less lhan ulirtY-OIIC (31) days musl 1I0tify thc Coullly's Personnel Departmcnt. in wrilillg, of his/her intcllt to return to ,,'ork no later thanthc bcginning of thc first full pay pcriod on tJIC first full calendar day following UIC completion of UIC pcriod of scrvicc and lhc expiration of cight hours alicr a pcriod allowing for thc safc lransportation of thc cmployec from lhc placc of sen'icc to thc cmploycc's residcnce; or, if through 110 fault of hi4hero\\'II, lhc cmploycc cannot rcport as scl forth abovc, he/shc musl do 50 as soon as possible. An cmployce who has bccn on mililal1' Icavc for morc than thirty (30) days. bu~ Icss Ulan 181 days will bc rctaincd OlltJlC Coullty payroll in. ,Ill inacti\'cstatus. Thc cmploYcc must notify thc County's Personnel Deparlmcllt, ill writing, of his/her intentlo rcturu to work no latcr thall fourteen (J ,1) days Clncr thc complclioll of tJlC sCITit'c; or, if tJlrough no falllt of his/hcr own,lhc cmploycc is ullablc to providc tJIC writtcn noticc in LIlc manllcr dcscribed, thcn he/shc must do so by UIC first full calcndar day possible. An cmployce who has bccn on military lea\'c fOl' morcthan 180 dars lll11slllOtify UIC COllllly, in writing, of his/he-r inlcnlto rctum to work no later tJlall nincly (90) days ancr completion of thc scn'icc, Not\\'iulstancling thc forq~oing, tllc COllnly may rcfuse to re-cmploy an clllploycc rctumillg from military Ica\'c if: I) The County's rirclllllslall{'cs ha\'c challgcd so

0001517

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

RULE 1200

Document 277

Filed 12/01/2008

Page 49 of 93

LEAVES OF ABSENCE WITHOUT PAY

Illuch as to make the re-emplopl1cnt impossible or ullrca!:onablc; 2) Thc class position from which 111e pcrson pre\'iously held has bccn delctcd ;Illd 111erc arc 110 similar or comparable positions; :~) He-cmploymcllt would cause lIl1due hardship 011 the Coullty; illld/or 'I) The employmellt from \rhirh the person len was for a hrief, 1I0n-recurrcnt pcriod and thcrc was no rcasonablc cxpcctation thc job would cOlltillllC illdclinitely or for allY signilicallt pcriod. (Rc\,.II/O I)

1201.50

Lea\'e lor Compensablc DisabiJit\,. Coullty employccs shall ha\'c an automatic !carc of abscllce from employmellt during slIch period as the cmployee is eligible to rccci,'c temporal)' disability compclIsation under the workcrs' compensation laws oflhc State. Said Ica\'c shall automatically tcrmillatc whentJlc right to such compcnsationtcrminatcs, the cmployec is detcrmined by lhc Hisk l\1anagclllclIl Di"ision of the Coullty COUIIScl'S Ollicc not to bc e1igiblc for workcrs' compcnsaLion bcnefits, 111c cmployce has bcell released to rcturn to work by a doctor authorizcd by thc Hisk Managcmcllt or a County doctor, or UIC cmploycc rctires from COllnl)' sen'icc, whicllc\'cl: occurs first. Employecs may usc sick !care during the Ica\'cherc pro\'ided for in accordancc wilh Ordillance Codc Scction 3.28.110. Employecs dctcrmined not to bc c1i/:,';blc for \ Vorkcr's Compcnsalion bcncfits shall ha,'c all Ica,'c Limc lakcn undcr ulis scctioll COII\'crlcd to allowablc Ic;\\,cs under SecLiolls 1201.20, or 1202.20 of UtC Ci\'il Scr\'icc Huks, as applicable. (Rc\,. 01/97) To lhc maximum cxtcnt pcnnillcd by law, alllca\'cs authorizcd by tllis Rulc shall nlll concurrcntly with Iea\'cs takcn pursuant to Hulc 1201.30 and shall ('ounl against thc. lweh'c (12) weck limil containcd in Hulc 1201.30. (HC\', 01/97)

1201.50,10

Employccs who arc on a compcll$ablc disability Ica"c of abscncc shall submit a statcmcnt of ulcir condilion fromlhcir doctor to their appointing authority as long ilS they rcmain on such Ieaye of abscncc. (HCY. 8/92)

1201.50.20

Any cmployce who is granlcd a scrvicc-connectcd disability reLircmcnl ,U1el who latcr is dctcnnincd by thc HcLircmcnl Board to bc JlO longcr incapacitatcd and who dcsircs to rcturn to acLi\'c Counl)' cmploymcnt and is rc-cmploycd shall bc dccmedto ha\'c bccn on iln appro\'cd Ica,'c of abscncc without pay for the pcriod of limc hc/shc rccei\'cu said scnicc-conncctcd disabilit),. (Rc\'.8/92)

1'201.GO

FamilY School And Liccnscd Child Day Carc Acti\'ilY Lea\'c. Any full-Lime or part-limc COllllty cmploycc who is a parcllt, guardian or grandparcllt "'itll custod)' of a child in grades Kindcrgarlcn ulrough Twelvc or allcllding a liccnsed child day carc facility, shall hc entitled to, upon propcr wrillcn rcqllcstto thc appoinLing aUlhoril}', a Ieaye from work up to a maximum of fort)' (.to) hours per year, but no morc Ulan cight (8) hours in an)' calendar mOllth, to parLicipatc 'in UIC acli\'iLics of UIC school or liccnscd child care 1;lcility of any of his or hcr childrcn, The employcc shall usc \'acation, compcnsalol)' limc-olr or any oUlcr paid Ieayc allowanccs Olhcr tJliln sick Ica\'C. If thc cmploycc has

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RULE 1200

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paid ka\'c Limc accmcd, kll\'c without pay shall bc takcn. The cmployee shall, h~\"C Iloticc of that rcqucst in writing to thc Dcpartmcllt Hcad no less thallthrce (3) working days prior to tllC datc of tllC schcduled school or day care activity. If Loth parellL~ work for thc samc departmeul, the departme!ll head Ill:!y limillhc lea\"e to the parent initially making thc requcst. If rcquested to do so by thc dcpartmcllt head, tllC cmployce shall pro\"idc wrillcll vcri/icalion of his or her participation in the school or day care aCli\·ily. (Rcv.02/98) 110

1202.00

DISCRETIONARY LEAVES OF ABSENCE \VITHOUT PAY

1202.10

Hc(]uest for Lca\·c. Any Coullty employcc who occupics a rcgular r1assilied position may apply for the discretiollary Ieavcs providcd ror inlhis Rule. Rcqucsts fOJ- all)' such leave without pay shall bc made upon forms prcscribcd by the Commission and shall statc spccilically the rcason for the rcqucst, thc datc whcn the employee desircs thc Ieavc 10 commcncc, am) the specilic date of rcturn. The rcquest shall be dcli\'crcu to tlle appointing authority for wrillcn rccommcndation that it be granted, modi/jed, Or dcnied, and both the requcst and the rccommcndation shall bc promptly transmillcd to tllC Dircctor by tllC appoiuting autllOrity. If tllC appointing alllhority recommcnds dcnial or modilication of tlle lea\"c rcqucstcd, thcrcasons tllcrcfore shall bc commul\icatcd to tllC Dircctor in writing. No such requcst shall Le dcnicd or modi/icd witllOUt notice to the cmployec, who mar appcal tlle dcnial or modilication to thc Commissioll. (HC\·. 8/92)

1202.20

Pcrsonal Nccessitv Lca\·c.:\ny pcrmancntfull.lime or pcrmancnt part-Limc cmployec ill tllC dassilicu scrvicc may bc grantcd, upon propcr \\'rillcll rcqucst and apprO"al of thc appointing autllOrit)' and tllC Director, a Ica\"c of abscncc without pay not Lo excecd thrce (3) months for pcrsollal reasons.
l202.20.1 ()

1202.20.20

TlIc situation or condition ncccssit;Jting Ica\'e is rcmcdial \\'itllin thc pcriod rcquesled. (Hc\·.8/92) The situ;JLion or condition ncccssitating lea\'c is not remcdial by olhcr means. (Rc\,. 8/92)

I 202.20.:~0

Rcfllsalto authorizc Ica\'c will rcsult in pcrson"l hardship or su/Terillg /e)r the employec or the cmployec's immcdiate family. (Hc\,. 8/92)

1202.20.·H)

Thc cmployec's ausencc will not substantially interfcre with the business or the afleeted departmcnt. (Rc\,. 8/92)

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1202,20.50

Thc elllployec shall usc all vacation bl\'C, holiday limc, and compcnsalory limc otT to ahscncc. (Hc\". 8/!)2) his/hcr credil prior 10 thc clTeco\"e elate ofthc Ica\'c

1202.20~GO

Thc employcchas cxhauslcd thc Iea\'c prm'ided fOl iii Section 1201.20 or $cclioll 1201,:10, or both, or is othcrwisc not eligihle for cither of such lca\·cs. (Re\'. 8/92)

1202.31,20

The posilion still exists and thc cl'nplo'ycc is olherwisc qualificd for the position. (Rc\,.

or

8/92) 1202.·10

Educational/Personal Enrichmenl Lea\'c. Any pcnnancnt full-timc or permancnt parltimc employcc in thc classified scn'icc may bc !{ranted, upon propcr wrillcn request and appro\'al of thc appointing authority and the Dircctor, a le;\\'c of abscnce without pay not to excecd onc (I) ycar lor cducalional or pcrsonal cnrichment purposes. Thc cducational or pcrsonal cnrichment IC;l.\'c may bc cxtended, upon tJle proper writtcn rcquest and appro\'al, one (I) additional ycar. (Hc\,. 01/9a)

1202.·11

An employcc granted an cducational/personal enriclnllcnt!c;\\,c ofabscncc without pay shall, lor two (2) ycars, retain the right to bc appointcd to. thc lirst \"acant position availablc in thc apprO\'ing department in the class of position which he/shc had pre\'iollsly occupied prior to tJ1C lca\'c of absencc. (He\,. 01/93)

1~02.,12

During U1C pcriod of thc cducational/pcrsonal cnrichmcllt Ieavc of ahscnce, and for a pcriod or two (2) ycars following thc completion orthc Iea\'c, if tJ1C cmployee is awaiting a \'acancr in thc department which approvcd thc Ieaye in thc class of position which hc/she had prcriously occupied, tJle employec shall bc retaincd on the payroll in an illacti\'c statlls. During this period, tllc cmployec retains the same bcnefits as other employccs 011 leave of abscncc for other purposcsundcr Rule 1202. If, alter two (2) years following completion of thc educationaVor personal enrichmcnt leavc ofabsence, a vacancy has not bccome a\'ailable to which thc cmployec can be appointed, then payroll status will be terminatcd. If such occurs, the cmployec shall automatically be placed on thc re-cmploymcnt list for tJ1C class OJ' classes in which the employee previously held regular status. mC\·. 01/93)

1202A:~

Thc employec is obligated to accept tJ1C lirst appointmcnt ollcrcd rollowing completion ofthc cuucation/pcrsollal cmicllJllcnllcave. Failurc to do so will rcsult ill tJlC forfeiture of all rights undcr ulis Rule. (Re\,. 01/93)

1202,·H

Rights undcr this Rule arc conditioned

1202.H.IO

lJsin~ all

1202,·(.·1..20

If thc cmployec fails 10 acti\'c!Y, continuously, ami succcssfully pursue an euucatiolla!/pcrsollal cmiclullellt goal, tJ1C lea\'c or abscncc shall be imll1ediately

011

thc cmplovec:

vacationlc;l\'e, holiday time, alld compcnsalory time o!T to his/her credit prior to tJle cl1c(ti\'c date of the Ica\'e or abscnce. (Hc\,. 8/92)

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canceled, amI tllc employee will losc thc rigllt to return 10 a posilion wilhin tltc dassilicd sen·ice. (Hc\·.01/93)

1202..t·UlO

Upon return from such !c;weol" absence to a positioi! within the r1a~sifi('c1 scn'icc, illI employee shall bc clltillcu to, amI have reillslated to his/her credit, all sick Ica\'c acculllulated hy him/hCJ" at UIC Limcof thc granting of Ihc leave of ahscncc; The employce shall also relain the \'acation accrual ratc cnjoyed prior to thc Ieavc of abscnce. The cmployec shall also havc his/her scniority c1atc rcslorcd, minus the length of timc he/shc was on the leavc or absencc. me\'. 8/92)

120:1.0{)

DLJR..\TION/EXTENSION OF 1,E:\VE.s \VITH0 l.lT PAY Lea\"Cs ofabscncc without pay may bc approvcd for UIC maximum pcriod ofLimc as spccilicd illthcsc Rules bascd upon thc rcason for tltc rcqucst. If tllc on!,,'inallcilvc of abscnce is not for thc maximum dur.llion allowctl and thc cmployce dcsircs all cxtcnsion OfU1C oribrlnallcavc of abscntc, U1C cmployee must rcqucst said cxtcnsion 011 the Ieavc of abscncc form and rcturn UIC complclcdform 10 thc appointing authority tCIl (10) days prior to thc cxpiration of the oril,rlllal Ieavc. Thc appointing auulOrity, withappro\"al of thc Dircctor, may exlend such Ieavcs only to UIC maximum time pcriodsspccificd hcrcin. (HC\·. 8/92)

120LOO

RETURN BEFORE EXPIR:\TION \ Vhellcvcr all cmploycc who has takcn a Ica\'c wiUlOut pay desircs to rctunJ beforc cxpiralion of suclllcavc, thc cmployce shall so 1I0til)·thc appointillg authorilY ill writing at Ieavc Iivc (5) calendar days in a
1205.00

LEAVES OF ABSENCE FOR NON-PROr-,lOTIONAL PROB:\TIONAHY El'\,IPLOYEES Notwilhslanding any othcr provision of Rule 1201.20 or Hule 120210 thc contrary, Ica\'cs of abscncc for probationary cmployccs shall bc adminislcred according to the following:

1205.10

1205.20

Non-promotional probational1' cmployccs shall becnLitlcd to a lea\'c of abscnce without pay for non-job-connccted illncss or disability, including disability resulting from prcgnancy, childbirth, or relatcd condition. Such lea\'c shall not cxcecd a maximum of I'
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l205.:~0

Non-promotional probationary employces shall not hc granted a discn:Gonary lca\"C of absence without par for any rcason olllcr lllan spccified in Hulcs 1205.10 and 1205.20. (Hc\,.8/92)

1205.··10

Non-promotional flrobaGonary cmployces called to ser\'c onjury duty shall be granted lime olT without loss of pay in accordancc \\;th Onlin:lnce Codc Section 3.20.0:30. Actualtimc away for jury scrvicc will bc added to the probation pcriod on a day-for-day basis as prm-ided in Rulc 702.22. (HC\'. 8/92)

1205.50

To the maximum extcnt permilled hy law, alllca\'es authorizeu by Hull: 1205 shall rlIlI concurrcntly \\;th Iea\'cs taken pursuant to Hulc 1201.30 and shall cOlint against tlte twel\'e (12) wcek limit containcd in Hulc 1201.30. (Rc\,. 02/98)

I~O(j.OO

VACATION OH SICK LE:\VF.l\CCHU;\IS WHILE ON LE:\ VE No cmploycc who has becn granlcd a Ica\'c without flay for any reason shall accrue \:;lcation or sick lea\'e during the linlC of such leavc. Ok\'. 8/92)

1207.00

HECOHD OF LEAVE Heconls oflca\'cs without pay, military Ica\'cs, sick lc;l\'c and \'acaGon accruals, dcducLions, and balanccs shall bc maintaincd in lllC onice of !J1C Commission. The Dircctor shall furnish [jIC appointing authority any informaGon from such records as may bc requested. (Hc\,. 8/92)

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RULE 1200

LEAVES OF ABSENCE WITHOUT PAY

paid leavc timc accmcd, le:l\'c wiLhouL pay shall hc taken. The cmploycc shall, b~"C noLicc of LhaL rClluest in wriLing to thc Departmcnl Hcad no Icss than three (3) working days prior to thc datc of the scheduled school or day ("arc activity. Ifboth parents work for thc same departmcnt, the departmcnt head may limilthe Ic;l\'c to the parclIl initially making the request If requested to do so by the dcpartmcnt head, thc employec shall provide wriuen \'crilicatioll of his or her participatiollin the school or day c;u'C acth'ity. (HC\'. 02/98) .

110

1202,00

DISCRETIONARY LEAVES OF ABSENCE \VITHOUT PAY

1202.10

Requcst for Lcavc, Any County cmployec who occupies it rcgular classificd position may apply for thc discretional}' ICa\'cs providcd for in this Rule. Rcquests for any stich leavc wiUlOut par shall bc madc upon forms prcscribed by the Commission and shall state spccifically the rcason for the requcst, thc date whcn the employcc desircs the lea\'c to commence, and the specific date of return. The request shall bc dcli,'cred to thc appointing authority for wrillcn recommendation that it bc grantcd, modified, or dcnied, and both UIC rcquest and Ule rccommcndation shall bc prompuy lransmiUcd to thc Director by the appointing auulority. If Ule appointing auulority recommends denial or modification of U1C leavc rcqucstcd, the rcasons thcrefore shaH bc communicatcclto UIC Dircctor in writing. No such rcqucst shall bc dcnicd or modified WiUlOUl noticc to Ule employce, who may appcal U1C denial or modification to U1C Commission. (He\,. 8/92)

1202,20

Personal Necessity Lea\-e. Any permancnt full-timc or permancnt part-Limc employee in the classified scn-icc mar be grantcd, upon proper written request and apprO\'al of the appointing auulOrity and the Director, a Icavc of absencc wiUlOut pay not to cxceed thrcc (3) months for pcrsonal reasons. (Hcv. 8/92) ApprO\'al of ~uch le;1\'c wiUlOut pay uncleI' Ulis scction shall hc conditionccl on lindings thal:

1202.20.10

1202.20.20

Thc situation or conditjon ncccssitating Ieavc is remcdial ",iulin U1C period requcstcd. (He\·.8/92) Thc situation or condition nccessitating Ic;l\'c is not rcmcclial br othcr mcans. (Hc\,. 8/92)

1202.20.30

Hcfusalto authorizc leave will rcsult in pcrsonallmnlship orsulrcling lonhc employce or thc employce's immediate f;unily. (Hc\,. 8/92)

1202.20AO

Thc cmployec's abscncc will not substantially interfere ",iul Ule busincss of thc alleclcd dcparUllcnl. (Rc\,. 8/92)

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1202.20.5()

'nlc cmployee shall usc all vacation Icavc, holi(lay timc, a1l(1 compcllsatory timc otT to his/hcr credit prior to thc clTccti\'c datc of tJ\C Icavc of ahscncc. (Hc,·. 8/fJ2)

1202.20.()()

Thc employcc has cxhaustcd thc leavc providcd for in Scction 1201.20 or Section 1201.30, or both, or is otJ\crwisc not eligiblc for cit her of such Icavcs. (Rev. 8/92)

1202.31.20

The position still cxists and tJ\C employcc is othcmisc qualificd for tJ\C position. (Hc\'. 8/92)

1202..10

Educational/Pcrsonal Enrichment Lc;wc. Any pcrmancnt full-timc or pennancnt parttimc employec in tJ\C classified scrvicc may bc granted, upon propCI' writtcn rcqucst and appro"al of the appointing authority and tJ\e Dircctor, a Icavcof abscnce without pay not to cxcced onc (1) ycar for cducational or pcrsonal enrichmcnt purposes. Thc cducational or pcrsonal cnrichmcnt Icavc may be cxtcnded, upon tJ1C propcr written rcqucst and approval, one (I) additional ycar. (Hc,'. OI/9a)

1202.:1·1

An cmployce /,'Tanted an cducational/pcrsonal enridllncntlcm'c 01" abscnce ",itJlOut pay shall, lor two (2) ycars, retain the right to bc appointcd to thc lirst vacant position ;\\'ailablc in tJ1C approving departJ11.cntin thc class of position wllich he/shc had prc"iously occupicd prior to tJ\C Icavc of abscncc. (Rc\,. 01/93)

1202..12

During tJ\C period of the educational/pcrsonal clllichment kavc of ahsence, and for a period or two (2) ycars following thc complction orthc leave, ifthc cmployec is awaiting a vacancy in thc dcpartment which approved the Ieavc in thc class of position which hc/shc had prc\'iously occupied, thc cmployec shall bc retaincd on thc payroll in an inactive status. DUling this pcriod, the employee retains tJ\C samc benefits as other employces on lca\'c of abscncc for other purposcs undcr Rule 1202. If, aller two (2) years following complction oftJ,c cducational/or personal cnrichment lea\"c of absence, a "acancy has not becomc availablc to which tJle cmploycc can bc appointcd, tJ\cn pa)Toll status will bc terminatcd. If such occurs, thc cmployec shall automatically bc placcd on thc re-cmploymcnt list for the class or classes in which thc employee prcviously held rCb'l.Ilar status. (Hcv.Ol/93)

1202..-1.3

Thc employec is obligated to acccptthc lirst appointmcnt ol1crcd lollowing completioIl of thc education/pcrsonal enrichmcnt leave. Failurc to do so will rcsult in tJIC forfciture of all rights undcr tJlis Rule. (Rev. 01/93)

1202.·j.,t

Rights undcr this Rule are conditioned

1202A,tlO

Using all \'acationlcavc, holiday timc, and compensatory timc olT to his/her credit prior to tJ1C elTecti,'c datc of the 1ca\'c or absence.
1202.·H.20

If thc employce f;\ils to acti\·cly, continuously, and succcssfully pursuc an educational/pcrsonal enrichmcnt goal, ~IC Ieavc of abscnce shall be immediately

011

,llc elliplovee:

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• KERN MEDICAL • CENTER AFFILIATED WITH UNIVERSI1Y OF CALIFORNIA SCHOOLS OF MEDICINE AT LOS ANGELES, SAN DIEGO, AND IRVINE

. June 14, 2006 Dr. David F. Jadwin 3184 BeaudJy Terrace Glendale, CA 91208-1745 RE: Request for extension ofJune 16 deadline Dear Dr. Jadwin: I was sony to hear ofyour accident. It seems as though it has been one thing after another for you and I can imagine your growing frustration with not being healthy. My response to your request for an extension ofleave has two parts to it. First. I win grant you a Personal Necessity Leave ofup to 90 days. This is predicated on your providing a physician's note indicating the ailment. This is comnion practice with the County and I want to make sure that we are consistent in following policy. This extension of leave, however, applies only to your employment status. It does not apply to your appointment as chairman and the associated duty assignments, which brings me to the second part ofthis extension. You have essentiaUy been out either fuU- or part-time for the past eight or nine months. You have used all ofyour vacation and sick time in addition to being in a non-pay status for six months, and while I understand the circumstances, it does not diminish the fact that the Department ofPathology needs a full-time chairman. For this reason, I am going to enact the provisions ofthe Medical Staff Bylaws, Paragraph 9.6-4, REMOVAL, and rescind your appointment as chairman. I regret that I have to do this but KMC is going through some challenging times and we need a full complement of leaders. Your continued unavailability creates a void that must be filled. This decision is effective June 17,2006. The obvious question that I am sure comes to mind is, ''what does this mean for me?" This essentially means that should you decide to return to work at KMC either within this 9O-day period or at the end of it, your contract will be changed to reflect a regular staff pathologist duty assignment. The amount oftime you spend will be mutually agreeable, but your duties will not include those ofthe chairman. Ifyou have any questions concerning this please give me a call at 661-326-2106. I wish you a speedy recovery.

000152 5 cc:

Irwin Harris, M.D., CMO Eugene Kercher, M.D., President, Medical Staff Karen Barnes, Deputy County Counsel OWNED AND OPERATED BY THE COUNTY OF KERN

1830 FLOWER STREET· BAKERSFIELD. CALIFORNIA 93305·4197· TELEPHONE (661) 326-2000

(

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Peter Bryan - Extension of leave From:

Peter Bryan David Jadwin, DO Date: 6/13/2006 1:08 PM Subject: Extension of leave cc: internet:[email protected]; Irwin Harris, MD; Karen Barnes

To:

--_._-----,------

I will be sending you a hard copy of this notice. My response to your request for an extension of medicall,eave has a two part answer. First, . I will extend leave to a Personal Necessity 'Leave for your employment status only. This means that you have 90 days of extended leave which will protect your overall employment status. At the end of this 90 day period, you must either return to duty or resign from employment. Second, I will not extend your leave as it relates to your appointment as Chairman, Department of Pathology. I am implementing the provisions of paragraph 9.6-4, REMOVAL, Medical Staff Bylaws, and withdrawing your appointment as Chairman, Department of Pathology. This institution needs to have full time leadership in the department and because of your leave you have not been able to provide it. Should you return to work after the completion of your Personal Necessity Leave then your employment contract will be modified as mutually agreed to reflect that you are still an employed pathologist (should you choose this option), but you will not retain the duties and appointment of a chairman. My decision to do this, Dr. Jadwin, is based solely on your inability to prOVide consistent and stable leadership in the department for most of the past eight to nine months. You have used all of your sick and vacation time in addition to using all available time under the medical leave provisions of County policy. It is unfortunate that you had your accident which delayed your return but the hospital needs to move on. Also recognize that should. you decide to return to work that I will require your treating physicians to stipulate your ability to work. This type of stipulation is consistent with what we require of all persons who have been out on an extended medical leave. Please let me know if you have any questions. As I indicated, you will be receiving a hard copy of my decision related to extending your leave.

0001526 file://C:\Documents%20and%20Settings\bryanp\Local%20Settings\Temp\GW} 0000 I.HTM

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IOIC HR

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D. Jadwin. M.D. 12110/05 thru 06/09/06 Timeline.

I

I I I

PaE PeriodlOates

05-22 05-23

Hours worked

Houl's ne~ded to cObJplete 80 hr PDy Period

80

32

05·24 05-25 12/10/05 thru 12/23/05 05-26 12124/06 tbm 01/06/06 06-01 01/07/06 tbm 01120/06 06-02 01/21106 thru 02103/06 06-03 02/04/06 tbru 02/17/06 06-04 02/18/06 thru 03/03/06

40 hours of sick 8 hours of vac

80 56

24

40

40

57.5

22.5

60.3

19.7

41.5

38.5

40

40

Total ofbours used w/ont ~

• 02123/06, end of

14.5

leave w/pay.

•

02124/06, leave

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

Document 277

Filed 12/01/2008

Page 59 of 93

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b76-S0-H77

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NAME

IJADWIN, DAVID

SOC. SEC. ",

1376-50-8177

DATE

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Case 1:07-cv-00026-OWW-TAG Document 277 Filed 12/01/2008 Page 64JOB of 93 TITLE KERN MEDICAL CENTER lITEM NO. 0"06

JADWIN, DAVID FRANK

I HOME DEPT. I 8719 I I #

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MEDICAL STAFF-PATHOLOGY

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I..JADWIN,DAVID FRANK

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IJADWIN, DAVID

FRANK

iOC.SEC. #

1376-50-8177

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Document 277

Filed 12/01/2008

Page 75 of 93

II KERN . II MEDICAL ...:: . CENTER AFFILIATED WITH UNIVERSITY OF CALIFORNIA SCHOOLS OF MEDICINE AT lOS ANGELES. SAN DIEGO.. AND IRVINE

RELEASE TO RETURN TO WORK ~ Following a Medical leave of Absence

o

Following a light-Duty Assignment

'"» cdho~H,

Date: 3..::13

Supervisor/Dept: .

Employee's Name:

=1)Q.\)·,d

'F.

-aCo

dcd(.~t,)~f)

The above-named employee has presented a physician's clearance to return to work following a medical leave of absence or a light-duty assignment.

3 -\ k -0\0

Return to Work Date:

~

Return to full duty with no restrictions.

o

Return with the following work restrictions:

o

_ _--,-__ Ibs.

o

_ _ _ _ _ _ _ _ with

o

minute breaks

_ _ _ _ _ _ _ _ with

minute breaks

D

o Duration of restrictions:

~~-

Please work with your employee to ensure that he/she does not exce inform us if you can no longer accommodate the restrictions.

these restrictions, and

If you have any questions, please contact the Human Resources office at 326-2640.

~"'h~~,f)e(

Phone:

3&- 2~L40

epresentative

OWNED AND OPERATED BY THE COUNTY OF KERN 1830 FLOWER STREET. BAKERSFIELD. CALIFORNIA 93305-4H17 • TELEPHONE (661)326-2000

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

Filed 12/01/2008

Document 277

-

. F.

· Page 76 of 93

c0ad~i() ~o...\,)~d

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CERTIFICATION OF HEALTH CARE PROviDER ~ 2:)06 ; Medical Leave of Absence 1.

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(Note: The health care provider Ie NOT to dtscIose the underlying diagnosIs without the consent

01 the patient)

commen~· }2- I b- 0 ~

2.

Date medicat cancfdlon or need for treatment

3.

Probably duration of medical condition or need for treatment

~ - 3> ft'1o.

Approximate datB on .which you ressonably expect employee/patient will be able to retum 10 work (includIng on light duty): -:--_~~--_-

3-1C,-0& 4.

The definitions on the reverse describe what is meant by a ·Serlous Health Condition- under both the federal Family and Medical Leave Act (FMLA) and the Califomia FamUy Rights Act (CFRA). Does the patient's condition qualify under any of the categories described? I' so, plesse check the appropriate category:

"I.e.S

(1)_ (2)...! (3)_ (4).i1. (5)_ (6)_ 5.

Is employee/patlent able to perform wort< of any kind?
X

Yee .

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18 employee uneble to pertonn any on. or more of the essential functions of employee's position? Answer after reviewing statement from employer of essentlal functions of employee'S posItJon, or, if none provided. after discussing with employee. Yes _ No _

STATEMENT OF EMPLOYER:

Please answec.the following ONLY If emploYee I.s reQuestfng Intenni\ten1 Leave or a Red!JC8d Worn SChedyle:

8.

18 it medICally necessary for employee/patient to be off work on an intennlttent basis or to work less than the empk)yee'a normal work schedule in otder to be treated for the Sfri~ health condition? Yes lL No _ . Desctibe:;;;r; t I~ Mj ~e '1w r- "2-

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>,±SJ Name of Health Care Provider: ~~1fL ~ I 5-t-! cI Typo 01 Pla<:tice:£ S."c.~. Signature of ProvIder.

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

Document 277

Filed 12/01/2008

Page 78 of lof 93 1 Page

"

Christine Teutimez - Re: David Jadwin

From: To: Date: Subject:

'Arlene Ramos-Aninion Christine Teutimez 5/2/20062:23 PM Re: David Jadwin

He gets paid for 20.5 hours. The' remaining time will be in a'no pay status. Thanks for your patience.

»> Christine Teutimez 5/2/2006 9:04:39 AM »> Hi Arlene, I received a time sheet for Dr. Jadwin and he only has 20.5 hours worked but across his time sheet it states "LOA= 59.5 hours" however he doesn't have enough sick or vacation time to make the difference between the 20.5 and 59.5, or is that what he is to be paid "per contract?" '

0001.547 file:/IC:\Documents%20and%20Settings\tetimzc\Loca1%20Settings\Temp\GW}0OOl3.HTM

5/2/2006

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_ _J...__ ___-1- .

Case 1:07-cv-00026-OWW-TAG 11/ 1::/~'Ol)t; 1 (I "7 F,",j:: :::282:~ i4

From: To; Date: SUbJect:

r:.rn.- t"' ,", I HULIJI) Document 277

'j

Filed 12/01/2008

".'\'-... Page 93 of4:!J 93

David Jadwin, DO Tracy Lindsey

11/13/200610:45:19AM Sick Time

Tracy. Because the time sheets are completed before the week is done, I forgot that I had a d Friday morning (and wouldn't have known how much time I was away).

tor's appointment

Please adjust my hours to reflect the use of 4 hours sick time on Friday,' November 10 Thanks. 0.1

,

I 1'1

III

0001.562

.,.....

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

1 2 3 4 5 6

Document 277-2

Filed 12/01/2008

Page 1 of 245

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

DAVID F. JADWIN, D.O.,

12 13 14

Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

15

Defendants.

16 17

Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 I, Eugene D. Lee, declare as follows: 20 1.

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

21 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 22 counsel of record for Plaintiff David F. Jadwin in this matter. 23 2.

I am making this declaration in opposition to Defendants’ Motion for Summary

24 Judgment. I have personal knowledge of the matters set forth below and I could and would competently 25 testify thereto if called as a witness in this matter. 26 3.

Attached hereto as Exhibits are true and correct copies of the following documents:

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

1

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

Document 277-2

Filed 12/01/2008

Page 2 of 245

Exh. 1

Date 7/10/2006

Description Memo from Mr. Bryan to JCC re Recommendation of Demotion of Dr. Jadwin

2 3 4 5 6

8/14/2008 8/26/2008 1/9/2008 3/12/2008 10/21/2008

Deposition Transcript of Peter Bryan, Vol I Deposition Transcript of Peter Bryan, Vol II Deposition Transcript of David Jadwin, Vol II Deposition Transcript of David Jadwin, Vol V Deposition Transcript of David Jadwin, Vol VI

7

8/18/2008

Deposition Transcript of Former Supervisor Barbara Patrick, Vol I

8

4/16/2008

Deposition Transcript of Former Lab Mgr Gilbert Martinez

10

9

8/22/2008

Deposition Transcript of Former President Scott Ragland

11

10

8/25/2008

Deposition Transcript of Supervisor Ray Watson

11

8/21/2008

Deposition Transcript of Former CEO David Culberson

12

8/29/2008

Deposition Transcript of PMK Philip Dutt, Vol. I

13

8/28/2008

Deposition Transcript of Former COO Sandra Chester

17

14

9/4/2008

Deposition Transcript of PMK Eugene Kercher

18

15

6/29/2006

Letter from Lee to Barnes re Spoliation of Evidence

16

3/29/2007

Letter from Lee to Barnes re Spoliation of Evidence

17

11/20/2007 Defendants’ Responses to Plaintiff’s Request for Production, Set One

18

9/10/2007

1 2 3 4 5 6 7 8 9

12 13 14 15 16

19 20 21 22 23 24 25

19

Joint Conference Committee Meeting Minutes re Demotion of OB/GYN Chair Kern County Policy & Administrative Procedures Manual, Section 139 (Disciplinary Actions)

20

3/12/2002

21

12/26/2003 Change of Employee Status

26

CMO Marvin Kolb Memo to Jose Perez re Pathologist Elsa Ang Accusations

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

2

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

Document 277-2

Filed 12/01/2008

Page 3 of 245

22

5/15/2006

Expert Consulting Services Agreement, between Consultant William Colburn and Kern County

23

8/30/2006

Consultant William Colburn Report to Kern County re Review of Jadwin cases

24

8/13/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. I

5

25

8/27/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. II

6

26

5/3/2004

KMC FNA Consulting Project by UCLA Consultant David Lieu

27

8/18/2008

Deposition Transcript of Former President of Medical Staff Jennifer Abraham

1 2 3 4

7 8 9 10

28

Cancer Conference Presenter Guidelines

29

8/15/2008

12

30

10/19/2005 Exh. 202: Jadwin letter to Albert McBride, Cancer Conference Director re October Conference

13

31

11

Deposition Transcript of Former Cancer Committee Director Albert McBride

October Conference attendee feedback

14 32

11/9/2005

Oncology Conference attendee feedback of Savita Shertukde

33

8/25/2008

Deposition Transcript of OB-GYN Physician Joseph Mansour

34

Harris Memos to File re Mansour Behavior

35

5/10/2006 to 4/12/2007 8/19/2008

36

8/18/2008

Deposition Transcript of Chair of Surgery Maureen Martin, Vol. I

37

4/16/2008

Deposition Transcript of Histotech Evangeline Gallegos

38

4/19/2008

Deposition Transcript of Former CMO Marvin Kolb

25

39

2/26/2008

Deposition Transcript of Pathology Secretary Tracy Lindsey

26

40

2/26/2008

Deposition Transcript of Clerk Irene Lopez

15 16 17 18 19 20 21 22 23

Deposition Transcript of Nurse Executive Antoinette Smith, Vol. I

24

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

3

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

Document 277-2

Filed 12/01/2008

Page 4 of 245

41

12/6/2007

Deposition Transcript of Radiology Chair Javad Naderi

42

12/6/2007

Deposition Transcript of Cancer Committee Chair Ravi Patel

43

8/15/2008

Deposition Transcript of Former CEO Secretary Arlene Ramos-Aninion

5

44

12/5/2007

Deposition Transcript of Surgeon Edward Taylor

6

45

12/6/2007

Deposition Transcript of Neurosurgeon Charles Wrobel

46

8/21/2008

Deposition Transcript of Psychiatry Chair Tai Yoo

47

8/20/2008

Deposition Transcript of Acting Pathology Chair Philip Dutt

48

9/14/2006

Acting Pathology Chair Philip Dutt Email to Barnes re Plaintiff’s Paycut Amendment

12

49

10/17/05

Plaintiff email to Bryan re Serious Biopsy Errors

13

50

3/2/2006

Exh. 271: Plaintiff email to Bryan re Serious Biopsy Errors

51

4/21/2006

Emails between Plaintiff and Bryan re Serious Biopsy Errors

52

8/7/2008

Deposition Transcript of Pathologist Savita Shertukde

53

3/11/2008

Deposition Transcript of David Jadwin, Vol. IV

19

54

10/21/2003 Confidential Report on Lau Complaint against Jadwin

20

55

1/8/2008

Deposition Transcript of David Jadwin, Vol. I

56

9/9/2008

Deposition Transcript of PMK Acting Pathology Chair Philip Dutt, Vol. II

57

12/4/2007

Deposition Transcript of HR Director Steven O’Connor

58

10/10/2005 Amendment No. 1 to Employment Contract of Acting Pathology Chair Philip Dutt

59

11/1/2005

1 2 3 4

7 8 9 10 11

14 15 16 17 18

21 22 23 24 25 26

Employment Contract of Pathologist Savita Shertukde

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

4

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

60

6/19/2007 4.

Document 277-2

Filed 12/01/2008

Page 5 of 245

Employment Contract of Pathologist Gian Yakoub

Attached hereto as Exhibits 2-14, 24-25, 27, 29, 33, 35-47, 52-53 and 55-57 are true and

correct certified copies of deposition transcripts which I either personally conducted or attended. 5.

Attached hereto as Exhibits 15-16 are true and correct copies of letters which I authored

and faxed to Karen Barnes, Chief Deputy County Counsel for the County of Kern on the dates indicated. 6.

I have served four sets of written discovery on Defendants which included Document

Request No. 44. asking for “Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from Chair of Kern Medical Center’s Pathology Department to staff pathologist.” To date, Defendants have not produced any of the agendas for any JCC meetings including the meeting at which the JCC voted to approve Plaintiff’s demotion from chair. Defendants have engaged in a level of discovery obstruction that is more excessive than I have ever encountered in my 13 years practicing as an attorney, of which this is but the latest example. 7.

Attached hereto as Exhibits 17 is a true and correct copy of Defendants’ responses

received by me in response to Plaintiff’s Request for Production of Documents, Set One, propounded by me on behalf of Plaintiff.

16 17 18

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

19 20 21

Executed on: December 1, 2008

22 23

/s/ Eugene D. Lee

24

EUGENE D. LEE Declarant

25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

5

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

Document 277-2

Filed 12/01/2008

Page 6 of 245

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

EXHIBIT 2

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

7

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3 4 5 6 7 8 9

DAVID F. JADWIN, D.O., ) Volume II ) Page 288 Plaintiff, ) ) vs. ) Case No. 1:07-cv-00026-OWW-TAG ) COUNTY OF KERN; et al.,) ) Defendants. ) _______________________)

10 11 12

Videotaped Deposition

13

of

14

PETER K. BRYAN

15

Tuesday, August 26, 2008

16

San Diego, California

17 18 19 20 21

Reported by:

Vivian R. Weiss, RPR, CSR No. 12380

22 23 24 25

BryanP2

Page 7 of 245 288

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

1

Q.

Sure.

Document 277-2

Filed 12/01/2008

The April 28th memo, I don't know if

2

you remember it, but you did detail quite a few

3

difficulties Dr. Jadwin was having in his communication

4

style and his lack of insight into how his own behavior

5

was contributing to the problem with his peers.

6

all detailed in the April 28 memo.

7

interested in that.

8

you made that the department of pathology functions

9

well, as it has for many years, and, yes, you continue

10

That's

But I'm not

I'm interested in this statement

to make positive changes to the department.

11

What were you basing that statement on?

12

A.

13

things.

14

passed the CAP inspection, College of American Pathology

15

inspection, and the department had successfully

16

completed those.

17

In pathology, I looked at really a couple The key thing is whether or not the department

And number two, there was no documented

18

evidence to me that the department was not fulfilling

19

its clinical obligations to the staff.

20

interactive challenges with Dr. Jadwin as an individual

21

and as a chairman, but the actual functioning of the

22

department of laboratory [sic] actually was fairly good.

23

Q.

Okay.

There were

So, in other words, the issues with

24

Dr. Jadwin's extended to his responsibilities and

25

effectiveness outside the department of pathology?

BryanP2

Page 8 of 245 332

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

Document 277-2

Filed 12/01/2008

Page 9 of 245 333

1

A.

Fundamentally, that's correct.

2

Q.

But you didn't have any -- you didn't see any

3

issues with Dr. Jadwin's leadership within the

4

department of pathology?

5 6

A.

Not overtly.

And, again, it did not

contribute to the decision asking him to step down.

7

Q.

8

overtly"?

9

things?

10

A.

Okay.

Well, what do you mean by "not

What do you mean?

No.

Covertly you were hearing

To me it's like our interaction here.

It

11

would be very difficult for me to be polite and

12

congenial with you and turn around in a session with

13

Mark and be a pit bull.

14

their style that dramatically.

15

my saying I did not see or hear a lot of complaints from

16

the staff within pathology, other than the pathologists

17

that left, about interactive problems.

18 19

Q.

You know, people don't change So that's the basis of

If there were complaints within the department

of pathology, who would they have gone to?

20

A.

A number of avenues.

They could have gone to

21

the chief medical officer, to me, to human resources

22

would probably be the three primary points of contact.

23 24 25

Q.

Would it eventually bubble up to you as the

A.

Yes.

CEO? If they weren't resolved and became a

BryanP2

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

1 2

Document 277-2

Filed 12/01/2008

Page 10 of 245 334

major issue, yes, they would have. Q.

Okay.

So as of April 28th, 2006, when you

3

wrote this memo to Dr. Jadwin, nothing had bubbled up to

4

you, correct?

5

A.

Nothing had bubbled up to me other than I knew

6

general uncertainty in the pathologist's staff about how

7

things were being run only because of the absence of

8

Dr. Jadwin.

9

Is he going to be on the schedule or not be on the

10 11

Is he here today, or is he not here today?

schedule? Q.

Now, was there anything communicated, to your

12

knowledge, to the department of pathology regarding

13

Dr. Jadwin's absence?

14

A.

I did not -- well, I don't recall giving any

15

specific written guidance or verbal guidance to the

16

department of pathology.

17

conversations with -- I'm going to space out his name

18

here -- with one of the pathologists who was there.

I do recall having some

19

Q.

Philip Dutt?

20

A.

Yes, with Dr. Dutt, about how to cover the

21

department and what I would expect him to do, in a very

22

general sense, in Dr. Jadwin's absence.

23 24 25

Q.

Okay.

And did Dr. Dutt express any complaints

to you at that time? A.

Well, we were most concerned about the

BryanP2

Case K. 1:07-cv-00026-OWW-TAG BRYAN, VOL. II

Document 277-2

Filed 12/01/2008

Page 11 of 245 08-26-08 Page 346

1

STATE OF CALIFORNIA

2

COUNTY OF SAN DIEGO

3 4

I, Vivian R. Weiss, RPR, a Certified Shorthand

5

Reporter for the State of California, do hereby certify

6

that the witness in the foregoing proceeding was by me

7

duly sworn; that the proceeding was then taken before me

8

at the time and place herein set forth; that the

9

testimony and proceedings were reported stenographically

10

by me and later transcribed by computer-aided

11

transcription under my direction; that the foregoing is

12

a true record of the testimony and proceedings taken at

13

that time.

14

I further certify that I am a disinterested

15

person and that I am in no way interested in the outcome

16

of said action.

17 18 19

IN WITNESS WHEREOF, I have subscribed my name this 8th day of September 2008.

20 21

22

Vivian R. Weiss, RPR, CSR No. 12380

23 24 25

vs. &

RANDALL

(800)

COUNTY 322-4595

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

Document 277-2

Filed 12/01/2008

Page 12 of 245

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

EXHIBIT 3

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

8

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

Document 277-2

Filed 12/01/2008

1

1

UNITED STATES DISTRICT COURT

2

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

3

---------

4

4

DAVID F. JADWIN, D.O.,

Page 13 of 245 1

) Volume I )

5

5

Plaintiff,

) ) No. 1:07-cv-00026-OWW-TAG

6

6

vs.

) )

7

7

COUNTY OF KERN; et al.

) )

8

8

Defendants.

)

___________________________) 9

9

10

10

11

11

12

12

13

13

VIDEOTAPED DESPOSITION

14

14

OF

15

15

PETER K. BRYAN

16

16

Thursday, August 14, 2008

17

17

Bakersfield, California

18

18

19

19

20

20

21

21

Reported by:

Cindee L. LeFevre, CSR No. 7974

22 23

22

24 25

23

26 27

24

28 29

25

BryanP1

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

1

Document 277-2

Filed 12/01/2008

Page 14 of 245 110

12:17:38 him

1

recollection of what Dr. Jadwin said to Dr. Raglan about

12:17:42

2

not being qualified to be the president of the medical

12:17:44 you 12:17:48 said

3

staff.

4

have any other specific regulations of what Dr. Jadwin

12:17:51 that he 12:17:54 12:17:56 12:17:59 that

5

to the other participants or any of the participants

6 7 8

was insulting? A. My recollection was, and it's stated in, I believe, that memorandum, that he offended everyone in

12:18:02

9

meeting.

2 3 4 5

Can you think of any other specific -- well, do

6 7 8 9 10 11 Not me, but all of his colleagues and medical

12 12:18:07 10

staff officers.

13 12:18:08 11

Q.

So it was -- did Dr. Jadwin insult you at the

14 12:18:13 12

mediation meeting?

15 12:18:14 13

A.

No.

12:18:15 14 make 12:18:19 15 meeting?

Q.

Okay.

16 17 18

So what other comments did Dr. Jadwin

to Dr. Raglan, comments of insult, at the mediation

19 20 21

12:18:27 16 of 12:18:31 17 dialogue

A.

The general tenor of that meeting, the intent

that meeting was to have adults sit down and have a

22 23 24 25

12:18:38 18 understanding 12:18:42 19 12:18:47 20 meeting

with the objective of leaving there with an of how people would communicate with each other, and Dr. Kercher was very instrumental in trying to move that

12:18:53 12:18:53 to 12:18:58 12:19:02 12:19:06 at

21 22

along.

23 24 25

Dr. Jadwin, and it took awhile, and by awhile, I mean probably at least 30 minutes for Dr. Jadwin to finally acknowledge what Dr. Kercher was attempting to do, and

26 27 28 29

And Dr. Kercher repeatedly tried to apologize

BryanP1

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

1 2

1 2

Document 277-2

Filed 12/01/2008

Page 15 of 245 230

Q. Okay. Do you think Dr. Jadwin was being unreasonable in any way in taking the stance as

manifested 3 3

by those two sentences?

4 5 6 7 8

16:45:59 of 16:46:03 16:46:07 16:46:08 nature

4

A.

Well, if you take -- if you put it in context

5 6 7

Toni Smith's response and what nursing did and what Dr. Jadwin's position is. And again, I get back to that collaborative

16:46:11

8

between two critical leaders in your organization where

9 10 11 12 13

16:46:15 9 there's a clear difference of opinion and an unwillingness 16:46:17 10 to communicate, and I remember private conversations Dr. 16:46:20 11 Jadwin and I had where he challenged Toni Smith's competency

14 16:46:24 12

as chief nursing officer.

15 16 17 18 19 20 21 22

16:46:26 because 16:46:29 16:46:33 16:46:36 16:46:36 16:46:39 16:46:43 put

13 14 15 16 17 18 19

Now, that was never communicated with Toni that's a private conversation that -- but Dr. Jadwin did make those comments to me. Q. Okay. A. And -- but that is not something I would share with Toni Smith, understanding where she is in things. But this, to me, says -- particularly when you

23 24 25

16:46:46 20 have 16:46:50 21 things,

it in the context of Toni Smith's memorandum -- the two

16:46:53 22 right 16:46:58 23 16:47:02 24 25 breakdown

and because it's not what Dr. Jadwin perceives as the

a distinct difference of opinion on how to handle

26 27 28 29

solution, things are amok. They are not running the way they should be running. Q. So you reviewed this issue of PCC's as a

BryanP1

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

Document 277-2

Filed 12/01/2008

Page 16 of 245 231

1

1

in internal communications between Dr. Jadwin and Toni

2

2

Smith, perhaps?

3

3

4

16:47:16

A.

I would categorize it as an inability of two

4

professionals to sit down and have a constructive

16:47:19

5

to come up with a satisfactory solution.

16:47:22

6

dialogue, 5

6 Q.

Okay.

Do you recall what your response was,

7

if

8

16:47:28

7

9

16:47:31

8

A.

I'm sorry.

10

16:47:32

9

Q.

Okay.

11

16:47:34 10

(Plaintiff's Exhibit Number 296

12

16:47:34 11

marked for identification.)

13

16:47:34 12

I would ask you review this a little more

14

16:47:55 13

15

16:47:56 14

16

16:47:58 15

17

16:47:59 16

A.

Okay.

18

16:50:27 17

Q.

Thank you.

19

16:50:31 18

A.

Yes, I do.

20

16:50:32 19

Q.

Tell me what it is.

21

16:50:35 20

A.

It is a memorandum from me to Dr. Jadwin

22

16:50:38 21

summarizing the meeting held among the three of us, Dr.

23

16:50:44 22

Jadwin, myself, and Karen Barnes.

any, to Exhibit 295? No, I don't.

The next one is 296.

carefully, Mr. Bryan. You have been handed a document

marked for

identification as Exhibit 296.

Do you recognize this document?

24 25

16:50:49 23

Q.

So in short, this is a memorandum from you to

26 27

16:50:52 24

David Jadwin dated April 17, 2006; correct?

28 29

25

A.

That's correct.

BryanP1

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

1

1

Document 277-2

Filed 12/01/2008

Page 17 of 245 249

previous where I said I need to know by June 16th

whether or 2 2 3 4 5

not he wanted to return full-time or resign his

position. 17:15:34 give

3 4

Q. A.

Okay. And the response -- his letter to me doesn't

6 7 8 9

17:15:39 5 return. 17:15:43 6 17:15:44 7 physically

me any hint at all as to whether or not he wants to

17:15:46

8

able to return.

17:15:51

9

ingredient there, what do you want to do.

Q. A.

Okay. Regardless, secondary, to when he is

10 And to me, that was a key missing

11 12 17:15:53 10

Q.

Okay.

Did you pick up the phone and call Dr.

13 17:15:58 11

Jadwin after receiving this?

14 17:15:59 12

A.

At this point, I, as probably Dr. Jadwin, was

15 17:16:02 13

frustrated with the issues.

I do not recall having a

17:16:05 don't, 17:16:10 17:16:14 17:16:17 17:16:22 Jadwin

14

conversation with Dr. Jadwin after receiving this.

15 16 17 18

because Dr. Jadwin, in essence, had not been physically present much during the preceding six months. Q. Okay. Well, on April 28, you had -- actually, looking back at Exhibit 303, you had asked that Dr.

16 17 18 19 20 21

I

22 17:16:26 19

go on full-time leave.

17:16:30 20

there.

Isn't that correct?

Take a look

23 24 25 26 27 28

17:16:34 last 17:16:36 17:16:39 17:16:52 off

21

I am going to direct your attention to the sentence of the third paragraph on Exhibit 303. A. Right. That's what I am reading. Yes. Q. Okay. Now, this request for Dr. Jadwin to go

25

to full-time, that's what it means; right, that

29

22 23 24

sentence?

BryanP1

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

1 2

Document 277-2

Filed 12/01/2008

Page 18 of 245 250

1 2

It was saying it would be better for the Pathology Department for Dr. Jadwin to go from an intermittent

3

schedule to a full-time leave.

work 3 Is that correct?

4 17:17:14

4

A.

That's correct.

17:17:15

5

Q.

Whose idea was that?

17:17:17 6 in 17:17:21 7 Department,

A.

Essentially, it was mine, reviewing the manner

5 6 7 8

which Dr. Jadwin was present or absent from the

9 17:17:23

8

and my perception was it was creating some issues of

17:17:28

9

scheduling within the Department.

10 11 17:17:30 10

Q.

Okay.

17:17:32 11 not be 17:17:36 12 accepted

A.

I also was not aware when he would or would

12 13 14

present.

Now, in this case, it says May 1, and I

15 16 17 18

17:17:40 13 prior 17:17:44 14 17:17:47 15 Jadwin

that, but I was never certain as to when Dr. Jadwin,

17:17:51 16

should be on intermittent work schedule, instead, to

17:17:55 17

full-time leave; correct?

to that, was present in the hospital or not. Q. Okay. So you made the decision that Dr.

19 20 21 22 23 24 25 26 27 28 29

17:17:56 18 preferable, 17:17:59 19 17:18:02 20 17:18:02 21 17:18:06 22 17:18:11 23 17:18:14 24 that 25 schedule

A.

No, what I indicated was it would be

which infers a decision. Q. Okay. A. And if I am not mistaken, Dr. Jadwin made a decision not to be present. Q. Okay. A. There was no dialogue back from Dr. Jadwin said, no, I still want to continue the intermittent

BryanP1

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

1 2 3 4 5 6 7

Document 277-2

Filed 12/01/2008

Page 19 of 245 261

1 2 3 4 5 6 7

to be ratified and approved by the Board of Supervisors? Would that be Karen Barnes? A. Karen Barnes or somebody in counsel's office. Q. I'm sorry. Before we get to that, 324. (Plaintiff's Exhibit Number 324 marked for identification.) Mr. Bryan, you are being handed a document

17:33:31

8

for identification as Exhibit 324.

17:33:36

9

A.

Okay.

17:33:39 10 is 17:33:46 11 you,

Q.

Well, this is a little bit confusing.

17:33:00 17:33:00 17:33:00 17:33:00 marked

8 9 10 11 12

DFJ1345

an e-mail from Renita Nunn to David Jadwin with a CC to

13 17:33:51 12

and it's dated June 26, 2006.

Is that correct?

14 17:33:55 13

A.

That is correct.

17:33:56 around 17:33:59 17:34:06 17:34:13 17:34:17 Dr.

14

Q.

And you recall receiving this e-mail at or

15 16 17 18

June 26, 2006? A. The e-mail doesn't say anything other than -excuse me -- maybe I wasn't listening well. This is an e-mail from Renita Nunn who was in the HR Department, to

17:34:23 letter 17:34:27 17:34:30 17:34:35 17:34:35 David

19

Jadwin, and in it, she is referencing the attached

20 21 22 23

that I wrote to Dr. Jadwin. Q. The attached letter is DFJ1346; correct? A. Yes. Q. And this letter attachment is from you to

15 16 17 18 19 20 21 22 23 24 25 26 27 17:34:40 24 28 29

25

Jadwin dated June 26, 2006; correct? A.

Yes.

BryanP1

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

1

1

Q.

Document 277-2

Filed 12/01/2008

Page 20 of 245 262

It's not signed, but do you recall drafting

this 2 2

letter at or around June 26, 2006?

3 3

A.

Yes.

17:34:51 part 17:34:55 17:34:57 17:34:58 part of

4

Q.

Okay.

5 6 7

of performing your duties as CEO; correct? A. Yes. Q. And you did, in fact, draft this letter as

17:35:02

8

performing your duties as CEO; correct?

17:35:04

9

A.

Yes.

17:35:05 10

Q.

Okay.

4 5 6 7 8

And drafting letters such as this was

9 10 11 And when Miss Nunn forwarded that

12 13 14 15 16 17 18 19 20

17:35:07 11 your 17:35:11 12 17:35:12 13 17:35:15 14 17:35:18 15 17:35:20 16 17:35:22 17 17:35:27 18 subsequent

attachment to Dr. Jadwin, I assume she was doing it on

17:35:31 19

medical issues that need to be cleared.

authority? A. Yes, and the applicable potions in the middle paragraph, paragraph three. Q. Of DFJ1346? A. That's correct. I say out of concern for your welfare, you are not to feel obligated to work while on leave, which led me to say stay away. You have

21 22 23 24 25

17:35:33 20 Jadwin 17:35:38 21 17:35:39 22 broke

Q.

So by June 26, 2006, you are aware that Dr.

had medical issues? A. Sure. I didn't challenge the fact that he

26 17:35:42 23

his foot.

I mean, I take people at their word on that.

27 28 29

17:35:46 24 for 25 not a

Q.

Well, a broken foot would take maybe two weeks

it to heal.

So it's not major.

BryanP1

Well, actually, it's

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

Document 277-2

Filed 12/01/2008

Page 21 of 245 08-14-08

Page 287 1

STATE OF CALIFORNIA

2

COUNTY OF KERN

3 I, Cindee L. LeFevre, a Certified Shorthand

5

Reporter in the State of California, holding certification

6

No. 7974, do hereby certify that PETER K. BRYAN,

7

the witness named in the foregoing deposition,

8

was by me duly sworn; that said deposition was taken

9

Thursday, August 14, 2008, at the time and place set forth

10 11

on the first page hereof. That upon the taking of the deposition,

the

12

words of the witness were written down by me in stenotypy

13

and thereafter transcribed by computer under my supervision;

14

that the foregoing is a true and correct transcript of the

15

testimony given by the witness.

16

I further certify that I am neither counsel for

17

nor in any way related to any party to said action, nor in

18

any way interested in the result or outcome thereof.

19 20

Dated this 2nd day of September, 2008, at Bakersfield, California.

21

.

22 23

/

~L)~

Cindee L. LeFevre, CSR No. 7974

24 25

vs. NDALL

R D I

ss.

4

w o

(800)

COUNTY 322-4595

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

Document 277-2

Filed 12/01/2008

Page 22 of 245

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

EXHIBIT 4

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

9

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

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Page 23 of 245 263

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

DAVID F. JADWIN, D.O.,

) VOLUME II ) Page 263 Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) COUNTY OF KERN; et al. ) ) ) Defendants. ) _______________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

DAVID FRANK JADWIN, D.O.

17

Wednesday, January 9, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

Reported by:

Susan R. Wood, CSR No. 6829

DFJ2

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

Document 277-2

Filed 12/01/2008

1

that she lost her position.

2

her -- or at least meant to imply that I'm sorry you

3

lost your position, but I'm not the fault of that.

4

And she continued to be sort of abrasive.

5

frankly I just said, you act like a nasty person.

6

And this was a mediation session.

7

BY MR. WASSER:

8 9 10 11

Q.

And I told -- I told

And quite

Anything more? MR. LEE:

Vague and ambiguous.

Calls for a

narrative. THE WITNESS:

Dr. Ragland was -- has also,

12

as I've mentioned in the past, not been that

13

objective.

14

reported some concerns to Mr. Bryan, and Scott

15

Ragland was nasty as a result of that, I think.

16

And in one instance I reported --

At the end of that meeting both Dr. Kercher

17

and Dr. Harris gave rather, on the face of it at

18

least, sincere apologies for the behavior that they

19

had undertaken to me.

20

saying, when Dr. Harris apologized, that -- I said

21

now that's an apology.

22

apologized he -- afterwards the meeting terminated.

23

He got up and literally slugged me so hard on the

24

shoulder that had I not been the size that I was I

25

would have been knocked over.

And I remember actually

And when Dr. Kercher then

DFJ2

Page 24 of 245 290

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

1

Document 277-2

Filed 12/01/2008

BY MR. WASSER:

2

Q.

Was that when you were working one or two

3

days a week?

4

A.

I believe so, yes.

5

Q.

Then you went on full-time leave after that?

6

A.

I had surgery, and then I had an injury to

7

my foot where I broke one of the bones in my foot,

8

ripped several ligaments in my ankle, and when I

9

recovered -- let's see.

I'm losing track of the

10

sequences here, but there was a point when Mr. Bryan

11

told me that he did not want me to take any more

12

part-time leave and that he wanted me to go on

13

full-time leave so I could use up my sick benefit.

14

Q.

15

Um-hmm. And so when you -- had you been thinking

16

about forming a corporation, a business like Columbia

17

Healthcare Analytics for some time?

18

MR. LEE:

Vague and ambiguous.

19

THE WITNESS:

I can't exactly when --

20

remember exactly when I decided to form it, but my

21

wife is in the I.T. industry, she's an executive at

22

Disney, and I think she encouraged me to think about

23

developing an I.T. company to do some of this quality

24

improvement work.

25

////

DFJ2

Page 25 of 245 384

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

Document 277-2

Filed 12/01/2008

515 Page 26 of 245

STATE OF CALIFORNIA ss. COUNTY OF KERN 'OB

I,

Susan R. Wood,

a Certified Shorthand

Reporter in the State of California, Certificate No.

holding

6829, do hereby certify that

DAVID FRANK JADWIN,

D.O., the witness named in the

foregoing deposition, was by me duly sworn; that said deposition was taken Wednesday,

January 9,

2008, at the

time and place set forth on the first page hereof. 1

That upon the taking of the deposition, the

2

words of the witness were written down by me in

3

stenotypy and thereafter transcribed by computer under

4

my supervision; that the foregoing is a true and correct

5

transcript of the testimony given by the witness.

6

I further certify that I am neither counsel for

.7

nor in any way related to any party to said action, nor

.8

in any way interested in the result or outcome thereof .

,9

10

Dated this 24th day of January,

2008, at

Bakersfield, California.

. 'm

23 24

rsi

Susan R. Wood,

5

CSR No.

6829

j

Ion

WOOD & RANDALL (800) 322-4595

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

Document 277-2

Filed 12/01/2008

Page 27 of 245

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

EXHIBIT 5

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

10

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) VOLUME V ) Page 838 Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

DAVID F. JADWIN, D.O.

17

Wednesday, March 12, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

DFJ5

Page 28 of 245 838

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

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Page 29 of 245 854

1

09:11:26

1 home.

There was no need to particularly direct

2

09:11:30

2 onsite, directly supervise the hematology supervisor.

3

09:11:32

3 That was all done by the laboratory manager.

4

09:11:35

4 pathologists were pretty much autonomous.

5

09:11:39

5 direction they would need is in this situation what

6

09:11:42

6 should I do, which could have all been done by phone.

7

09:11:46

7 And I think the important part was to remove me away

8

09:11:51

8 from -- at least for part of the week, away from the

9

09:11:56

9 hostility of the environment in the hospital.

The

The most

10

09:12:00 10

You had mentioned Dr. Shertudke, would I be

11

09:12:03 11 surprised if she made some claim that I criticized

12

09:12:12 12 her so severely that she moved out of the room?

13

09:12:16 13 know, I don't remember any such incidents of any

14

09:12:19 14 severity whatsoever, but I haven't been provided with

15

09:12:23 15 enough facts to -- to really assess that situation to

16

09:12:26 16 provide any comment about it.

17

09:12:30 17

18

09:12:39 18 extension of my decision to decide whether or not to

19

09:12:43 19 remain on as chair occurred one day after I broke my

20

09:12:47 20 ankle.

21

09:12:53 21 was just a request to be able to defer my decision

22

09:12:59 22 past -- beyond June 16th.

23

09:13:03 23 already put in was placed earlier and -- and was

24

09:13:07 24 terminated on April 28th, when Mr. Bryan told me that

25

09:13:14 25 he wanted me to stop going on -- working on a one- to

You

Regarding my request on May 30th for an

I was in quite a bit of severe pain, and it

DFJ5

The extension that I'd

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

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1

09:13:17

1 two-day schedule per week and to take my leave full

2

09:13:20

2 time so I could exhaust it as soon as possible.

3

09:13:27

3

THE REPORTER:

4

09:13:27

4

THE WITNESS:

5

So I could -Exhaust it as soon as

5 possible.

6

09:13:27

6

And I think the last thing that I want to

7

09:13:30

7 mention is that there had been some mention of my

8

09:13:37

8 activities during 2006, particularly in early 2006,

9

09:13:43

9 regarding Columbia Healthcare Analytics, and I think

10

09:13:48 10 I've mentioned several times that I did mostly setup

11

09:13:51 11 work and mostly directing other people, such as the

12

09:13:55 12 person that I hired for setting up the I.T. system

13

09:13:58 13 and my cousin and my stepdaughter to perform work,

14

09:14:02 14 and that work consisted of perhaps, at the most,

15

09:14:06 15 three or four e-mails a day.

16

09:14:10 16 were probably in the nature of one, two, or three

17

09:14:12 17 sentences long.

18

09:14:17 18 four phone calls that probably didn't last very long

19

09:14:20 19 either.

20

09:14:27 20 the Website and the design of a logo for the company

21

09:14:30 21 that was being done by other people.

22

09:14:31 22

23

09:14:35 23 developing an I.T. system; purchasing office

24

09:14:39 24 equipment, which was largely managed again through

25

09:14:42 25 that person and later on my cousin; developing a

Most of those e-mails

And I maybe made less than three or

Those activities dealt with the design of

It had to do with the direction of

DFJ5

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Page 31 of 245 983

1

13:34:31

1 Center at that time?

2

13:34:32

2

A.

Yeah.

3

13:34:39

3

Q.

And at no time did you ask anyone for an

4

13:34:42

4 accommodation?

5

13:34:43

5

6

13:34:45

6 That's vague and ambiguous as to accommodation.

7

13:34:47

7

But you can answer, if you think you know.

8

13:34:49

8

THE WITNESS:

9

13:34:52

9 with my therapist, Dr. Riskin, and mentioned at a

MR. LEE:

That calls for a legal conclusion.

Actually, we did.

I talked

10

13:34:58 10 point later on that it would be -- it was very

11

13:35:04 11 difficult to be there all the time facing all this

12

13:35:06 12 hostility but that I could potentially work one to

13

13:35:10 13 two days a week.

14

13:35:14 14 found it therapeutic that I would be away from the

15

13:35:17 15 hospital at least part of the week, and that was

16

13:35:21 16 reflected, I think, in my medical leave request.

17

13:35:25 17 BY MR. WASSER:

18

13:35:26 18

19

13:35:28 19 leave, weren't you?

20

13:35:29 20

21

13:35:31 21 That misstates -- assumes facts not in evidence.

22

13:35:33 22

But you can answer, if you think you know.

23

13:35:35 23

THE WITNESS:

24

13:35:39 24 when Mr. Bryan told me that he wanted me to go on

25

13:35:42 25 full-time leave so that I would use up my leave

Q.

He agreed with that.

He actually

And you were allowed to take intermittent

MR. LEE:

That calls for a legal conclusion.

I was allowed up until April,

DFJ5

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Page 32 of 245 984

1

13:35:45

1 faster.

2

13:35:47

2 BY MR. WASSER:

3

13:35:48

3

4

13:35:50

4 two or three days a week for some period of time,

5

13:35:54

5 weren't you?

6

13:35:55

6

A.

For some period of time, yes.

7

13:35:57

7

Q.

And did you consider that to have been in

8

13:36:00

8 response to your request to work one or two or three

9

13:36:03

9 days a week?

Q.

You were -- you were actually working one or

MR. LEE:

Um-hmm.

10

13:36:04 10

That's vague and ambiguous as to

11

13:36:06 11 request, response.

12

13:36:10 12 the administration's motives.

13

13:36:11 13

14

13:36:12 14 understand.

15

13:36:13 15

16

13:36:17 16 worked out.

17

13:36:19 17 a good working agreement.

18

13:36:22 18 department had run well.

19

13:36:26 19 in at least two different documents, plus all the

20

13:36:28 20 other evidence that I showed.

21

13:36:32 21 department was running very well with me only being

22

13:36:35 22 there one or two days a week.

23

13:36:37 23

24

13:36:41 24 April 28th, I met in his office and he instructed me

25

13:36:47 25 to use up my leave so that we could get past this

Speculative as to Mr. Bryan or

But please answer, if you think you

THE WITNESS:

It was an agreement that we

Mr. Bryan actually thought it would be He had said that the I think it's been cited now

Actually, the

And then in April, I believe it might be

DFJ5

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Page 33 of 245 985

1

13:36:51

1 period because he felt that it was -- there was a

2

13:36:55

2 need for a full-time pathologist, which I did not

3

13:37:00

3 agree with because, as he said in two different

4

13:37:03

4 places, the department was running just fine.

5

13:37:06

5

6

13:37:12

6 this was that we had made attempts much earlier to

7

13:37:15

7 get a locum tenens pathologist in place.

8

13:37:19

8 pathologists can certainly handle the work of that

9

13:37:22

9 department if they're productive and -- and

I think the one problem I had with all of

Two

10

13:37:27 10 organized.

I mean, certainly I ran the department

11

13:37:29 11 by myself with no help for weeks at times and managed

12

13:37:34 12 it.

13

13:37:36 13

14

13:37:39 14 potentially be stressed out -- I know that

15

13:37:41 15 Dr. Shertudke could handle the work, but Dr. Dutt was

16

13:37:44 16 not nearly as efficient in completing his work.

17

13:37:49 17

18

13:37:52 18 knowing that I was going to go have sinus surgery in

19

13:37:55 19 March, I believe, which was subsequently put off

20

13:37:58 20 until May because my mother had a diagnosis of

21

13:38:01 21 lymphoma and there was a prohibition against flying

22

13:38:07 22 for up to a year, I believe, as I recall, following

23

13:38:12 23 the sinus surgery.

24

13:38:15 24 surgery in March and my mother became deathly ill,

25

13:38:18 25 I wouldn't be able to fly to Michigan to -- to attend

But I -- rather than having people

I had asked some period of time before that,

And so if I'd had the sinus

DFJ5

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

STATE OF CALIFORNIA

2

COUNTY OF KERN

Document 277-2

Filed 12/01/2008

1001 Page 34 of 245

ss. 3 4

I,

Susan R. Wood,

a Certified Shorthand Reporter in

5

the State of California, holding Certificate No.

6829,

6

do hereby certify that DAVID FRANK JADWIN,

D.O.,

the

7

witness named in the foregoing deposition,

was by me

8

duly resworn;

9

March 12,

10 11

that said deposition was taken Wednesday,

2008,

at the time and place set forth on the

first page hereof. That upon the taking of the deposition,

the

12

words of the witness were written down by me in

13

stenotypy and thereafter transcribed by computer under

14

my supervision; that the foregoing is a true and correct

15

transcript of the testimony given by the witness.

16

I

further certify that I am neither counsel for

17

nor in any way related to any party to said action,

18

in any way interested in the result or outcome thereof.

19 20

Dated this 9th day of April,

2008,

at

Bakersfield, California.

21 22 23 Susan 24 25

WOOD & RANDALL (800) 322-4595

No.

6829

nor

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

Document 277-2

Filed 12/01/2008

Page 35 of 245

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

EXHIBIT 6

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

11

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

Document 277-2

Filed 12/01/2008

1

1

2

2

3

3

4

4

5

5

6

6

7

7

8

8

9

9

10

10

11

11

12

12

13

13

14

14

15

15

16

16

DAVID FRANK JADWIN, D.O.

17

17

TUESDAY, OCTOBER 21, 2008

18

18

19

19

20

20

21

21

22

22

23

23

24

24

25

25

Page 36 of 245 1002

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

)VOLUME VI )Page 1002 Plaintiff, ) ) vs. )NO.: 1:07-cv-00026-OWW-TAG ) COUNTY OF KERN; et al. ) ) Defendants. ) ________________________)

VIDEOTAPED DEPOSITION OF

GLENDALE, CALIFORNIA

REPORTED BY: SANDRA D. ORTIZ, CSR NO. 6048

DFJ6

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

Document 277-2

1

2

2

3

3

4

4

how to describe it other than that.

5

5

core physician arrangements that were set up for all

6

6

the physicians that were core physicians,

7

7

essentially permanent physicians.

8

8

9

9

10

10

contract that you believe should have been renewed?

11

11

And you mentioned that you want --

12

12

A

I want to see or would have seen?

13

13

Q

Well, that you expect to have seen.

14:27

What what was called?

Page 37 of 245 1034

1

14

Q

Filed 12/01/2008

I mean I need to pin

you down to -A

Q

The faculty practice plan.

I don't know There was the

So getting back to the question, the

question is what terms do you want to see in the

You're

14

suing -- the tenth and eleventh claims are the

15

15

contract was not renewed.

16

16

17

17

in that contract that should have been renewed.

18

18

You're in the process of --

19

19

20

20

as opposed to what I wanted at the time.

21

21

I'm a little concerned.

22

22

23

23

simply want to know what terms you want in the

24

24

contract.

25

25

A

I want to know what terms you want to see

A

Q

You're talking about it in the future tense That's why

I don't care what tense we're in, sir.

That I wanted in the contract --

DFJ6

I

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

Document 277-2

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Page 38 of 245 1035

1

1

MR. LEE:

2

2

Objection.

3

3

sitting here today, what does he want to see in

4

4

those contracts, or do you mean as of the time his

5

5

contract expired?

6

about?

6

14:27

Hold on. Vague and ambiguous.

You mean,

What time period are you talking

7

7

MR. WASSER:

Well, I think I'm talking

8

8

about October 7, 2008, when the Second Amended

9

9

Complaint was filed.

10

10

MR. LEE:

11

11

THE WITNESS:

12

12

13

13

14

14

15

15

A

16

16

trying --

17

17

Q

I said October 7, 2008, because --

18

18

A

Okay.

19

19

Q

-- I'm trying to respond with your lawyer

20

20

who keeps trying to prevent you from answering

21

21

questions.

22

22

MR. LEE:

23

23

THE WITNESS:

24

24

about.

25

25

/ / /

Does that clarify it, Dr. Jadwin? October, 2006; right?

BY MR. WASSER: Q

Sir, I don't really care what date.

is your lawyer's issue.

It's not my issues.

I thought you said 7.

Hold on.

DFJ6

This

That's why I was

You mean 13 days ago?

That's what I'm confused

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

1

1

2

2

3

14:28

3

Document 277-2

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Page 39 of 245 1036

BY MR. WASSER: Q

That's when the Second Amended Complaint

was filed.

4

4

A

Oh, okay.

5

5

Q

That's when you've alleged this.

6

6

A

Okay.

7

7

Q

That's what I'm talking about.

8

8

9

9

10

10

contract?

11

11

that you want to see renewed?

12

12

13

13

conclusion.

14

14

can't sit here and dictate what a contract would

15

15

look like.

16

16

BY MR. WASSER:

17

17

Q

What terms do you want, sir?

18

18

A

I'm still confused about "want."

19

19

20

20

What I wanted were the terms that I

21

originally had that were taken away from me.

21

14:28

What is it that you're alleging as of October 7, 2008, not renewing plaintiff's employment What terms should be in that contract

MR. LEE:

Hold on.

That calls for a legal

Dr. Jadwin is not an attorney.

He

You mean

wanted at the time?

22

22

Q

In 2000?

23

23

A

In 2006 when this amended thing came --

24

24

25

25

this amendment came up. Q

Okay.

I'm asking you what terms are those?

DFJ6

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Document 277-2

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1

1

2

2

3

3

4

4

5

5

6

6

period that you're talking about?

7

7

BY MR. WASSER:

8

14:32

8

Page 40 of 245 1041

BY MR. WASSER: Q

Please answer it, sir. MR. LEE:

answer it.

If you think you understand,

But if you don't, don't answer.

THE WITNESS:

Q

Can you clarify the time

Well, I did that.

October 7, 2008, when

9

9

10

10

11

11

was -- the chair was taken away from me, actually,

12

12

and the demotion in salary.

13

13

14

14

15

15

16

16

17

17

Q

Okay.

18

A

Yes.

19

19

Q

Okay.

20

20

21

21

A

The terms of my original contract.

22

22

Q

Well, your original contract made you

23

23

24

24

25

25

18

14:32

you filed the Second Amended Complaint. A

Q correct? A

Okay.

It had to do with the fact that I

Exhibit 581 took the chair away from you; And lowered your salary; correct? It mentioned -- I don't believe that this

took away the chair -That's correct.

The JCC did that.

Uh-huh. Well, I'm asking you.

When you say

you want your original contract back --

chair, didn't it? A

It's -MR. LEE:

Hold on.

DFJ6

Vague and ambiguous as

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

Document 277-2

1

1

2

2

3

3

4

4

5

5

my objections.

6

6

too bad.

7

7

MR. WASSER:

8

THE WITNESS:

8

14:34

Filed 12/01/2008

Page 41 of 245 1044

BY MR. WASSER: Q

We've clarified that three times.

The time

reference, sir, is October 7, 2008. MR. LEE:

Mr. Wasser, I'm allowed to lodge

Okay?

If you don't like it, that's

Right. The -- without sitting here

9

9

with the contract side by side, those would be the

10

10

ones that I can think of right now, the most

11

11

important ones.

12

12

BY MR. WASSER:

13

13

14

14

contract that you're suing for, your thought is you

15

15

would -- you would what? -- you would negotiate

16

16

terms of some new arrangement with Kern Medical

17

17

Center to get a new deal?

18

18

mind?

19

19

20

20

strategy.

21

21

not to answer.

22

22

23

23

24

24

25

25

Q

So when you think about this renewed

MR. LEE:

Hold on.

Is that what you have in

First of all, that's

That's attorney work product and instruct

MR. WASSER: answer that question? MR. LEE:

You're instructing him not to On what grounds?

You're asking what he's suing

for?

DFJ6

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

Document 277-2

1

2

2

finish the answer, please, before you interrupt.

3

3

BY MR. WASSER:

4

4

5

5

'08 -- that's the date we're talking about in all

6

6

these questions, sir.

7

You don't want to go work there again, do you?

14:47

Q

Hold on.

Objection.

Page 42 of 245 1060

1

7

MR. LEE:

Filed 12/01/2008

Let him

A

My question, October 7, '08, October 7,

We've made that very clear.

8

8

I don't want to work under the conditions

9

9

10

10

conditions that I had from October to December of

11

11

2006.

12

12

Q

Those two months?

13

13

A

And some other periods prior to that,

14

14

actually.

15

15

Q

16

16

MR. LEE:

17

17

THE WITNESS:

18

18

where?

19

19

BY MR. WASSER:

20

20

21

21

22

22

23

23

24

24

25

25

that I was there before at -- you know, the

Q

Going back to, actually, October, 2005. What's changed? It's vague and ambiguous. I'm sorry.

At Kern Medical Center.

What's changed

Anything changed?

You said it's gotten worse. MR. LEE:

It's vague and ambiguous.

BY MR. WASSER: Q

I believe your word was "deteriorated

further" if I --

DFJ6

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

Filed 12/01/2008

Page 43 of 245 1096

1

1

2

2

3

3

4

4

MR. LEE:

5

5

MR. WASSER:

6

6

7

7

8

8

9

9

10

10

did you expect your contract, Exhibit 577 as amended

11

11

by Exhibit 581, to be renewed by the County of Kern?

12

12

A

During October of 2007?

13

Q

As of October 4 of 2007.

14

14

A

Yes.

15

15

Q

Had the contract been renewed, Exhibit 581,

16

16

as amended by Exhibit -- I'm sorry -- Exhibit 577 as

17

17

amended by Exhibit 581, had the contract been

18

18

renewed on and as of October 4 of 2007, would you

19

19

have continued with litigating this lawsuit, among

20

20

other things?

21

21

A

With -- with the 581 as well?

22

Q

Yeah.

13

22

16:01

16:01

A

Document 277-2

Yes. MR. WASSER:

got.

That's all the questions I've

Thank you very much. I'd like to ask some questions. All right.

EXAMINATION BY MR. LEE: Q

Okay.

Dr. Jadwin, as of October 4 of 2007,

And --

Exhibit 570 -- I'm sorry.

23

23

Exhibit 577 as amended by Exhibit 581, had the

24

24

County had, in fact -- had the County, in fact,

25

25

renewed that contract as amended, would you have

DFJ6

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

Document 277-2

Filed 12/01/2008

Page 44 of 245 1097

1

1

continued with your lawsuit in pursuing legal

2

2

remedies against the County and other defendants?

3

3

4

4

MR. LEE:

5

5

MR. WASSER:

6

6

Thank you, Dr. Jadwin.

7

7

THE WITNESS:

8

8

THE VIDEOGRAPHER:

9

9

MR. WASSER:

10

10

11

11

12

12

13

13

14

16:02

A

Yes. Okay.

No further questions.

I have no questions.

Thank you. Off the record?

Yep.

THE VIDEOGRAPHER:

This concludes today's

deposition of David -MR. LEE: want to add.

14

I'm sorry.

Just one more thing I

I apologize.

Plaintiff would like to have the 30 days

15

15

under the statute to correct the transcript.

Under

16

16

the FRCP.

17

17

MR. WASSER:

18

18

MR. LEE:

19

19

THE VIDEOGRAPHER:

20

20

deposition of David Jadwin, D.O., Volume 5.

21

21

number of tapes used was one.

22

22

23

23

24

24

(Whereupon, the deposition proceedings

25

25

concluded at 4:02 P.M.)

That's fine.

Okay. This concludes today's

The time is 4:02 P.M.

The

We are off the

record.

DFJ6

DCase FRANK JADWIN, D.O., VOL.Document VI 1:07-cv-00026-OWW-TAG 277-2

Filed 12/01/2008

Page 45 of 245 10-21-08 Page 1099

1 2

I, SANDRA D. ORTIZ, CSR No. 6048, Certified Shorthand Reporter, do hereby certify:

3

That the foregoing proceedings were taken

4

before me at the time and place herein set forth, at

5

which time the witness declared under penalty of

6

perjury; that the testimony of the witness was

7

recorded stenographically by me and was thereafter

8

transcribed under my direction.

9

That the foregoing is a true and correct

10

transcript of my shorthand notes so taken and of the

11

testimony so given.

12

( ) That no review of the transcript was requested. ( X ) That review of the transcript was requested. ( ) That the witness has failed or refused to approve the transcript.

13 14 15 16 17 18 19

I further certify that I have no interest in the outcome of this action. In witness whereof, I have hereunto subscribed my name this 28th day of October, 2008.

20 21 Ii / I

l

()L/1L(JL~~

22

SANDRA D. ORTIZ,

23 24 25

VS. RANDALL

(800)

KERN 322-4595

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

Document 277-2

Filed 12/01/2008

Page 46 of 245

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

EXHIBIT 7

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

12

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) VOLUME I ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

BARBARA ELIZABETH PATRICK

17

Tuesday, August 19, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

PatrickB1

Page 47 of 245 1

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

1

Document 277-2

Filed 12/01/2008

Page 48 of 245 22

1 BY MR. LEE:

2

13:35:49

2

Q.

I think I misheard.

Thank you.

3

13:35:53

3

4

13:35:55

4 Board of Supervisors.

5

13:35:56

5

A.

Yes, I was.

6

13:35:59

6

Q.

Can you tell us the terms of your

7

13:36:01

7 chairmanship of the board?

8

13:36:04

8

9

13:36:09

9 2006.

And were you at any point the chair of the

A.

Sure.

Three times.

It would have been in 1996, 2001, and

10

13:36:11 10

Q.

And these are, what, two-year terms?

11

13:36:13 11

A.

Just one year.

12

13:36:18 12

Q.

One-year term.

13

13:36:20 13

14

13:36:26 14 job functions of your position as County supervisor?

15

13:36:32 15

16

13:36:37 16 we did meetings; we had committees that we served on.

17

13:36:41 17 I also represented the board on the Valley Air

18

13:36:44 18 District and also represented the valley on the

19

13:36:47 19 California Air Resources Board.

20

13:36:53 20 of responsibility.

21

13:36:56 21

22

13:37:01 22 to -- bless you -- strike that.

23

13:37:01 23

24

13:37:04 24 the Board of Supervisors with respect to Kern Medical

25

13:37:06 25 Center?

What -- how would you describe your -- the

A.

Q.

How much time do you have?

We did budgets;

So I -- I had a lot

What were your job functions with respect

What were your job functions as a member of

PatrickB1

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

Document 277-2

Filed 12/01/2008

Page 49 of 245 26

1

13:41:11

1 chair of the Board of Supervisors?

2

13:41:13

2

A.

Typically, yes.

3

13:41:14

3

Q.

So in 2006 when you were the chair of the

4

13:41:19

4 Board of Supervisors, you were attending the joint

5

13:41:23

5 conference committees in your role as a chair of the

6

13:41:25

6 Board of Supervisors?

7

13:41:27

7

A.

I'm sure I attended most of them.

8

13:41:32

8

Q.

Okay.

9

13:41:37

9 recall the joint conference committee meeting

Do you recall at a joint -- do you

10

13:41:39 10 occurring on July 10, 2006, at which Dr. Jadwin's

11

13:41:43 11 removal from chairmanship of the pathology department

12

13:41:46 12 was considered and voted upon by the JCC?

13

13:41:49 13

14

13:41:52 14 but I do remember the discussion, yes.

15

13:41:54 15

16

13:41:56 16 conference committee met on July 10, 2000- -- did I

17

13:41:59 17 say '8?

18

13:42:03 18 to approve removal of Dr. Jadwin from chair of the

19

13:42:06 19 department of pathology at Kern Medical Center.

20

13:42:11 20

21

13:42:15 21 chair?

22

13:42:15 22

A.

I imagine that I did.

23

13:42:17 23

Q.

You have no reason to believe you did not.

24

13:42:19 24 Right?

25

13:42:19 25

A.

Q.

I couldn't verify that it was on that date,

Well, I'll represent to you that the joint

I meant '6 -- 2006 to vote to consider and

Did you vote on Dr. Jadwin's removal from

A.

I have no reason to believe I did not.

PatrickB1

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

Q.

Document 277-2

Okay.

Filed 12/01/2008

Page 50 of 245 27

1

13:42:21

1

2

13:42:25

2 for? against?

3

13:42:27

3

A.

I imagine I would have voted in favor of it.

4

13:42:29

4

Q.

Favor of it.

5

13:42:30

5

6

13:42:33

6 is the basis for your decision to approve or to vote

7

13:42:36

7 in favor of removal of Dr. Jadwin.

8

13:42:39

8

What did you base that decision on?

9

13:42:41

9

MR. WASSER:

Okay.

Do you recall how you voted?

Was it

Did you --

What I'm interested in knowing today

As an elected County

10

13:42:46 10 supervisor, Supervisor Patrick has a legislative

11

13:42:49 11 immunity which extends to the rationale for votes

12

13:42:52 12 that she cast in her capacity as supervisor.

13

13:42:56 13 immunity is based upon separation of powers.

14

13:42:58 14

15

13:43:03 15 a privilege that she holds.

16

13:43:07 16 a local legislator.

17

13:43:11 17 privilege and answer the question, it is a privilege

18

13:43:13 18 she holds herself.

19

13:43:16 19 privilege, she can assert the privilege and can

20

13:43:20 20 decline to answer questions regarding the reasons she

21

13:43:26 21 had in her mind for votes that she cast in her

22

13:43:29 22 capacity as a local legislator.

23

13:43:31 23

MR. LEE:

24

13:43:33 24

MR. WASSER:

25

13:43:35 25 powers privilege.

That

So it is Ms. Patrick's -- I mention this as It's personal to her as

If she wishes to waive that

If she wishes to assert the

Okay.

I'm going to state that --

And that is the separation of

It's not based upon State statute.

PatrickB1

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

Document 277-2

Filed 12/01/2008

Page 51 of 245 30

1

13:45:48

1

(Requested portion of record read.)

2

13:46:14

2

THE WITNESS:

3

13:46:20

3 BY MR. LEE:

4

13:46:21

4

5

13:46:25

5 workplace at Kern Medical Center.

6

13:46:27

6

A.

Over an extended period of time.

7

13:46:33

7

Q.

Okay.

8

13:46:35

8 unavailability.

9

13:46:37

9

Q.

He wasn't there.

So simply physical unavailability from the Is that correct?

You've stated physical He wasn't there.

What other bases did you base your decision

10

13:46:41 10 on?

11

13:46:43 11

12

13:46:45 12 have a chair in place, and he was not there and had

13

13:46:52 13 not been there for an extended period of time.

14

13:46:54 14

15

13:46:55 15

16

13:46:57 16 period of time.

17

13:46:58 17

A.

Yes.

18

13:46:59 18

Q.

Is that the sole reason then that you based

19

13:47:00 19 your vote on, or are there others?

20

13:47:02 20

A.

Yes.

21

13:47:03 21

Q.

Yes.

22

13:47:04 22

23

13:47:06 23 unavailability of Dr. Jadwin, are you aware of the

24

13:47:11 24 reasons for Dr. Jadwin's physical unavailability at

25

13:47:14 25 Kern Medical Center?

A.

Q.

Well, it was my feeling that we needed to

I understand. So physical unavailability for an extended

Okay.

Now, regarding the physical

PatrickB1

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

Filed 12/01/2008

Page 52 of 245 70

1

14:25:47

1

2

14:25:50

2

3

14:25:53

3 would help you to recall whether or not there was

4

14:25:56

4 discussion or whether you asked any questions at that

5

14:25:58

5 removal meeting to remove Dr. Jadwin?

6

14:26:02

6

A.

No.

7

Q.

No.

A.

When I left office, I shredded all my

7

Q.

Document 277-2

Don't recall. Is there any documents you can think of that

8

14:26:12

8

9

14:26:15

9 documents.

10

14:26:16 10

Q.

When did you leave office again,

11

14:26:17 11 Ms. Patrick?

12

14:26:18 12

A.

It was on January 8th of 2007.

13

14:26:22 13

Q.

2007.

14

14:26:23 14

A.

Um-hmm.

15

14:26:24 15

Q.

Were you aware that plaintiff had sent the

16

14:26:26 16 request to defendants asking them not to destroy any

17

14:26:28 17 evidence, that we were intending to file a lawsuit?

18

14:26:33 18 Were you aware of that?

19

14:26:34 19

A.

I received nothing.

20

14:26:37 20

Q.

Did legal counsel at any point ever discuss

21

14:26:39 21 with you plaintiff's request that no documents be

22

14:26:43 22 destroyed relevant to Dr. Jadwin's litigation?

23

14:26:47 23

A.

No.

24

14:26:49 24

Q.

To this day you have not been contacted

25

14:26:51 25 regarding preservation of documents and evidence in

PatrickB1

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

Document 277-2

Filed 12/01/2008

Page 53 of 245 71

1

14:26:54

1 connection with this litigation?

2

14:26:55

2

A.

No.

3

14:27:03

3

Q.

Do you think you might have been contacted

4

14:27:04

4 before you shredded the documents?

5

14:27:07

5

A.

I would not have shredded documents --

6

14:27:10

6

Q.

Sure.

7

14:27:10

7

A.

-- had I remembered it, but I -- not that I

8

14:27:13

8 recall.

I don't remember.

9

14:27:14

9

Okay.

Q.

Not that I can recall.

Do you recall -- is there a custom to

10

14:27:29 10 take notes at any JCC meetings?

11

14:27:32 11

A.

Typically I did.

12

14:27:32 12

Q.

Typically you did.

13

14:27:35 13

14

14:27:36 14 took notes at the JCC removal meeting?

15

14:27:39 15

A.

No.

16

14:27:39 16

Q.

No reason to believe you didn't.

17

14:27:41 17

A.

Right.

18

14:27:42 18

Q.

Okay.

19

14:27:45 19 you shredded upon your -- your leaving your

20

14:27:50 20 supervisor position?

21

14:27:53 21

A.

I shredded everything when I left.

22

14:27:57 22

Q.

Everything.

23

14:27:57 23

24

14:27:59 24 the JCC meetings?

25

14:28:02 25

Do you have any recollection of whether you

Right?

Were those notes among the documents

So it would have included your notes from

A.

It might have.

I don't know that I would

PatrickB1

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

Document 277-2

Filed 12/01/2008

Page 54 of 245 72

1

14:28:04

1 have -- I don't know that I would have taken notes on

2

14:28:07

2 an executive session-type thing but....

3

14:28:10

3

4

14:28:12

4 not have taken notes for.

5

14:28:15

5 you're saying?

6

14:28:16

6

7

14:28:19

7 of doodled something on the side of -- you know, a

8

14:28:22

8 date or something like that on the side of a -- of

9

14:28:25

9 the agenda, probably.

Q.

A.

Oh, so there are some JCC meetings you would

No.

Correct?

Is that what

I'm just saying I would have just sort

10

14:28:26 10

Q.

So you consider doodles to be notes, then?

11

14:28:28 11

A.

That would -- that would be pretty much what

12

14:28:31 12 I would have done.

13

14:28:32 13

14

14:28:34 14 doodles in the margin?

15

14:28:35 15

A.

Yes.

16

14:28:36 16

Q.

Sort of like cartoon figures or --

17

14:28:38 17

A.

Oh, no, no, no.

18

14:28:41 18 maybe a date or something underlined or --

19

14:28:44 19

Q.

I see.

20

14:28:44 20

A.

-- something like that.

21

14:29:12 21

Q.

So when you say doodles, you mean notes --

22

14:29:15 22 little written notes on the sides of the agendas

23

14:29:17 23 then.

24

14:29:18 24

25

14:29:20 25 this because we would get meeting minutes.

Q.

So when you say notes, you actually mean

Not cartoon figures.

But

Correct? A.

Yes.

It wouldn't have been something like

PatrickB1

It would

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

Document 277-2

Filed 12/01/2008

Page 55 of 245 73

1

14:29:23

1 be more or less reminders to myself about something.

2

14:29:26

2

3

14:29:29

3 day?

4

14:29:30

5 6

Q.

Okay.

4

A.

No.

14:29:30

5

Q.

Were they destroyed?

14:29:33

6

A.

They were probably just thrown out.

7

Q.

Thrown out.

7

And do you have those doodles to this

8

14:29:47

8

Do you recall discussing job abandonment at

9

14:29:51

9 the removal meeting?

10

14:29:56 10

A.

I remember there was discussion of that.

11

14:29:58 11

Q.

What do you remember of that discussion?

12

14:30:00 12

A.

I don't remember specifics.

13

14:30:03 13

Q.

You just remember the term job abandonment

14

14:30:06 14 and that's it?

15

14:30:07 15

16

14:30:10 16 in relationship to the item at hand, but I don't

17

14:30:16 17 remember the specifics of it.

18

14:30:18 18

19

14:30:22 19 related to the item at hand with respect to

20

14:30:25 20 Dr. Jadwin's removal?

21

14:30:40 21

A.

He had been gone a long time.

22

14:30:45 22

Q.

Okay.

23

14:30:48 23 relate to job abandonment?

24

14:30:54 24 just say you don't recall.

25

14:30:55 25

A.

Q.

A.

I remember that there was discussion of that

Well, can you recollect how job abandonment

And what's that mean?

I don't.

And if you don't recall,

I don't recall.

PatrickB1

How does that

But he had been

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

Document 277-2

Filed 12/01/2008

Page 56 of 245 75

1

14:32:09

1 certain date?

2

14:32:09

2

A.

I believe so.

3

14:32:09

3

Q.

You believe so.

4

14:32:09

4

5

14:32:09

5 that, this deadline that was imposed on Dr. Jadwin?

6

14:32:14

6

A.

Not specifically.

7

14:32:16

7

Q.

Okay.

8

14:32:18

8 deadline, whether -- what the rhyme or rationale was

9

14:32:22

9 for that deadline, that particular deadline?

Okay.

A.

Do you recall that?

Do you recall how you learned of

Do you recall the basis for that

10

14:32:28 10

11

14:32:31 11 assume things.

12

14:32:32 12

13

14:32:33 13

14

14:32:34 14 BY MR. LEE:

15

14:32:35 15

Q.

If you don't recall, just say --

16

14:32:36 16

A.

I do not recall.

17

14:32:38 17

Q.

Do not recall.

18

14:32:39 18

19

14:32:40 19 deadline that -- well, I'm going to represent to you

20

14:32:43 20 that the deadline that was imposed on Dr. Jadwin was

21

14:32:46 21 that he was to render a decision to Mr. Bryan by June

22

14:32:48 22 16, 2006, as to whether he was going to return as a

23

14:32:51 23 full-time chair or resign his chairmanship.

24

14:32:55 24

25

14:32:58 25 reported having some kind of physical ailment at or

Q.

I'm assuming that -- I should probably not

You should not. MR. WASSER:

Okay.

Okay.

Do not guess.

Do you recall that at or near the

Do you recall whether Dr. Jadwin

PatrickB1

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

Document 277-2

Filed 12/01/2008

Page 57 of 245 76

1

14:33:02

1 near the deadline and asking for more time to decide?

2

14:33:07

2 Do you recall that?

3

14:33:07

3

A.

That, I do not remember.

4

14:33:09

4

Q.

Don't recall.

5

14:33:09

5

6

14:33:18

6 the removal meeting regarding Dr. Jadwin's removal?

7

14:33:20

7

A.

No, sir, I don't.

8

14:33:21

8

Q.

You don't recall whether it was more than an

9

14:33:24

9 hour, less than an hour?

Do you recall how long the discussion was at

10

14:33:26 10

A.

I do not.

11

14:33:26 11

Q.

When agenda items were discussed at the JCC,

12

14:33:31 12 can you put, like, an average time on each agenda

13

14:33:34 13 item in terms of discussion time?

14

14:33:40 14

15

14:33:42 15 were quite short.

16

14:33:46 16 executive session, and we did not typically even have

17

14:33:50 17 executive sessions at that.

18

14:33:55 18 to fit that into any kind of a continuum of time.

19

14:34:01 19

20

14:34:03 20 raised the issue of job abandonment at the removal

21

14:34:07 21 meeting?

22

14:34:07 22

A.

I do not.

23

14:34:08 23

Q.

Do you recall whether there was any

24

14:34:10 24 significant amount of discussion regarding job

25

14:34:13 25 abandonment at the removal meeting?

A.

Q.

Some of them were quite lengthy and others

Okay.

But that would have been in the

So it would be difficult

Now, do you remember the -- who

PatrickB1

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

Document 277-2

Filed 12/01/2008

Page 58 of 245 77

1

14:34:15

1

A.

I do not.

2

14:34:15

2

Q.

So what do you recall what was discussed at

3

14:34:22

3 the removal meeting besides a little bit of job

4

14:34:25

4 abandonment and the fact that Dr. Jadwin was

5

14:34:27

5 physically unavailable due to medical leave?

6

14:34:31

6 recall anything else being discussed?

7

14:34:35

7

8

14:34:41

8 have present chair of pathology.

9

14:34:44

9

A.

Q.

Do you

I think what was discussed was the need to

So do you recall any discussion about due

10

14:34:47 10 process rights of Dr. Jadwin?

11

14:34:50 11

A.

I don't.

12

14:34:51 12

Q.

So, in other words, you can't say one way or

13

14:34:53 13 the other.

14

14:34:54 14

A.

That's right.

15

14:34:54 15

Q.

It may have been discussed but not --

16

14:34:56 16

A.

Yes.

17

14:34:58 17

Q.

Do you recall anything about Dr. Jadwin

18

14:34:59 18 having a property right or property interest in the

19

14:35:01 19 chairmanship?

20

14:35:04 20

A.

I don't recall any such discussion.

21

14:35:06 21

Q.

Don't recall.

22

14:35:08 22

23

14:35:09 23 it happened?

24

14:35:10 24

MR. WASSER:

25

14:35:11 25

THE WITNESS:

Okay.

Again, it was a long time ago.

So, in other words, you don't believe

She didn't say that, Counsel. No.

PatrickB1

I said I don't recall any

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

Document 277-2

1

14:35:13

1 such discussion.

2

14:35:14

2 BY MR. LEE:

3

14:35:15

3

4

14:35:18

4

5

14:35:20

5 the other or --

6

14:35:21

6

7

14:35:23

7 ago.

8

14:35:25

8 discussion.

9

14:35:29

9

Q.

Okay.

Filed 12/01/2008

Page 59 of 245 78

So -- I just want to clarify.

So does that mean you don't know one way or

A.

I don't know.

The meeting was a long time

I don't remember that being part of the

Q.

Okay.

So I'm just -- again, there is a fine

10

14:35:31 10 distinction for me.

11

14:35:33 11

12

14:35:34 12 way or the other or, to your recollection, it did not

13

14:35:36 13 happen?

14

14:35:38 14

15

14:35:42 15 meeting to tell you whether it occurred or not.

16

14:35:46 16

17

14:35:52 17

18

14:35:55 18 removal meeting, chief medical officer?

19

14:35:58 19

A.

I don't.

20

14:36:00 20

Q.

Do you recall if Jennifer Abraham was at

21

14:36:02 21 the -- well, she wouldn't have been there.

22

14:36:04 22 mind.

23

14:36:05 23

24

14:36:13 24 Peter Bryan sometime around early 2006 regarding

25

14:36:17 25 Dr. Jadwin?

So are you saying that you don't know one

A.

Q.

I don't remember enough specifics of the

Okay.

Thank you.

That's perfectly fine.

Do you recall if Dr. Irwin Harris was at the

Never

Do you recall receiving a memorandum from

PatrickB1

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

STATE OF CALIFORNIA

2

COUNTY OF KERN

Document 277-2

169 Page 60 of 245

Filed 12/01/2008

ss.

3 4

5

I,

Susan R. Wood,

a Certified Shorthand

6

Reporter in the State of California,

7

Certificate No.

8

BARBARA ELIZABETH PATRICK,

9

foregoing deposition, was by me duly sworn; that said

o

deposition was taken Tuesday, August 19,

1

time and place set forth on the first page hereof.

2

6829,

holding

do hereby certify that the witness named in the

2008,

at the

That upon the taking of the deposition,

the

3

words of the witness were written down by me in

4

stenotypy and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct

6

transcript of the testimony given by the witness. I

further certify that I am neither counsel for

nor in any way related to any party to said action,

nor

in any way interested in the result or outcome thereof. Dated this 2nd day of September, Bakersfield,

2008,

at

California.

Susan

~-N-O-'-6-8-2-9----

WOOD & RANDALL (800) 322-4595

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

Document 277-2

Filed 12/01/2008

Page 61 of 245

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

EXHIBIT 8

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

13

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

GILBERT R. MARTINEZ

17

Wednesday, April 16, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

MartinezG

Page 62 of 245 1

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

A.

Document 277-2

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Page 63 of 245 111

1

10:17:52

1

2

10:17:55

2 not participate in obtaining the documents.

3

10:17:58

3

4

10:17:59

4

5

10:18:01

5

6

10:18:03

6 pathology office.

7

10:18:04

7

8

10:18:07

8 work, to your knowledge, for this?

9

10:18:08

9

A.

Yes.

10

10:18:09 10

Q.

To the clerical staff?

11

10:18:11 11

A.

Yes.

12

10:18:20 12

Q.

Okay.

13

10:18:26 13 discussion with Dr. Jadwin around end of November,

14

10:18:29 14 right before Thanksgiving of 2006, regarding an audit

15

10:18:35 15 coming from CAP, JCAHO, or the Department of Health

16

10:18:39 16 Services?

17

10:18:42 17 Health Services.

18

10:18:48 18

A.

An audit regarding?

19

10:18:49 19

Q.

Well, did he ever tell you that an audit was

20

10:18:52 20 coming to the hospital?

21

10:18:54 21

A.

An audit or an inspection?

22

10:18:55 22

Q.

An inspection.

23

10:18:57 23

A.

I believe around -- it may have been around

24

10:19:04 24 that time that he came into my office and let me know

25

10:19:07 25 that there was going to probably be some type of

Q.

I just knew that that was occurring.

I did

I see. Who did?

A.

Q.

That was the clerical staff up in the

Okay.

Was this a substantial amount of

Now, do you recall ever having a

I'm sorry.

The California Department of

I'm sorry.

MartinezG

An inspection.

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

Document 277-2

Filed 12/01/2008

Page 64 of 245 112

1

10:19:11

1 inspection.

2

10:19:12

2

Q.

Can you recall what exactly he told you?

3

10:19:21

3

A.

The gist of it was to make sure I had the

4

10:19:25

4 department ready, inspection ready.

5

10:19:29

5

6

10:19:32

6 said it to you or what he said?

7

10:19:34

7

A.

Not the specific words, no.

8

10:19:35

8

Q.

Basically, the message was you should get

9

10:19:39

9 ready; there's an audit coming?

Q.

Okay.

But -- so you don't recall how he

10

10

A.

Yes.

11

11

Q.

Okay.

12

10:19:41 12

A.

More an inspection.

13

10:19:43 13

Q.

An inspection.

14

10:19:44 14 inspection.

15

10:19:44 15

16

10:19:46 16 audit, actually?

17

10:19:46 17

18

10:19:49 18 purposes.

19

10:19:51 19 inspection's a survey to make sure that you're in

20

10:19:54 20 compliance with all of the regulatory requirements.

21

10:19:58 21

22

10:20:00 22

23

10:20:02 23 inspection was coming?

24

10:20:07 24

A.

I do not recall if I did or not.

25

10:20:10 25

Q.

Okay.

Yeah.

I apologize.

An

What's the difference between inspection and

A.

Q.

Well, an audit is more like for accounting When we think of an inspection,

I see. Did you ask Dr. Jadwin how he knew an

Did he mention any of the agencies

MartinezG

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

Document 277-2

Filed 12/01/2008

Page 65 of 245 113

1

10:20:17

1 that might be doing these inspections?

2

10:20:21

2

3

10:20:23

3 specific agency.

4

10:20:24

4

5

10:20:27

5 get ready for an inspection -- well, did he say it

6

10:20:31

6 would be multiple inspections or one inspection?

7

10:20:33

7

A.

He did not say it would be multiple.

8

10:20:35

8

Q.

So when Dr. -- after Dr. Jadwin told you to

9

10:20:40

9 get ready for an inspection around November,

A.

Q.

He may have, but I don't recall if it was a

Okay.

Well, after Dr. Jadwin told you to

10

10:20:45 10 Thanksgiving of 2006, what did you do next?

11

10:20:50 11

A.

I informed my administrative supervisor.

12

10:20:55 12

Q.

Who was that?

13

10:20:57 13

A.

I believe that was Dr. Kolb at the time.

14

10:21:00 14

Q.

Marv Kolb?

15

10:21:01 15

A.

I believe so.

16

10:21:01 16

Q.

In 2006?

17

10:21:02 17

A.

Or David Hill.

18

10:21:04 18

Q.

I think Marv Kolb left --

19

10:21:07 19

A.

If he had left, it was David Hill, then.

20

10:21:09 20

Q.

David H-i-l-l?

21

10:21:10 21

A.

Yes.

22

10:21:10 22

Q.

What's David Hill's position or was it?

23

10:21:12 23

A.

He was the admin- -- he was the

24

10:21:14 24 administrator over ambulatory care.

25

10:21:16 25

Q.

Okay.

One of the two.

What did David Hill tell you?

MartinezG

What

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

Document 277-2

Filed 12/01/2008

Page 66 of 245 114

1

10:21:18

1 was his response?

2

10:21:19

2

3

10:21:34

3 readiness of the laboratory for an inspection.

4

10:21:38

4

5

10:21:41

5 with David Hill?

6

10:21:42

6

A.

I do not recall.

7

10:21:43

7

Q.

Was it -- how many days or was it

8

10:21:45

8 immediately after you had the meeting with

9

10:21:47

9 Dr. Jadwin?

A.

Q.

Oh, I believe he asked me about the

Okay.

And when was the date of your meeting

10

10:21:47 10

A.

Probably within a few days.

11

10:21:49 11

Q.

Within a few days.

12

10:21:51 12

13

10:21:57 13 when Thanksgiving was.

14

10:22:08 14

15

10:22:12 15 there was an inspection coming?

16

10:22:16 16

17

10:22:18 17 me.

18

10:22:19 18

19

10:22:23 19 next or do you know what happened next?

20

10:22:26 20

21

10:22:30 21 the most part, we're pretty much ready for

22

10:22:32 22 inspections just about any time.

23

10:22:36 23 double-checked to make sure we were okay.

24

10:22:37 24

25

10:22:41 25 would be like a hospital-wide inspection or whether

Okay.

Well, let me check something.

Okay.

I want to see

Did David Hill ask you how you knew

A.

I had told him that Dr. Jadwin had talked to

Q.

Okay.

A.

Q.

No.

And then do you recall what happened

Okay.

I just made sure that we were -- for

Just -- just

Did Dr. Jadwin specify whether it

MartinezG

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

1

Document 277-2

Filed 12/01/2008

Page 67 of 245 121

1 BY MR. LEE:

2

10:41:46

2

Q.

Mr. Martinez, did you find Dr. Jadwin to be

3

10:41:48

3 arrogant during the time working with him?

4

10:42:05

4

A.

Not arrogant.

5

10:42:07

5

Q.

Okay.

6

10:42:11

6 overbearing?

7

10:42:15

7

A.

Not with me.

8

10:42:17

8

Q.

Okay.

9

10:42:19

9 overbearing?

Did you find Dr. Jadwin to be

With other people you found him

10

10:42:25 10

A.

There was a complaint.

11

10:42:27 11

Q.

By whom?

12

10:42:29 12

A.

Jane Thornton.

13

10:42:29 13

Q.

Jane Thornton.

14

10:42:31 14

15

10:42:34 15 Did you find Dr. Jadwin to be intimidating?

16

10:42:37 16

A.

No.

17

10:42:37 17

Q.

How about uncooperative?

18

10:42:41 18 Dr. Jadwin to be uncooperative?

19

10:42:52 19

A.

There was an occasion or two, yes.

20

10:42:54 20

Q.

Can you tell me those occasions?

21

10:42:57 21

A.

One occasion was with the -- there was a --

22

10:43:00 22 another compliance issue regarding a -- the ordering

23

10:43:04 23 of a CBC versus a CBC in dif.

24

10:43:09 24

Q.

That's lab equipment?

25

10:43:10 25

A.

That's lab -- a lab test.

Okay.

I mean -- what about intimidating?

MartinezG

Did you find

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

Document 277-2

Filed 12/01/2008

Page 68 of 245 122

1

10:43:13

1

Q.

Supplies?

2

10:43:14

2

A.

The test itself.

3

10:43:15

3

Q.

Oh, okay.

4

10:43:17

4

A.

CBC is a complete blood count.

5

10:43:21

5 differential is a complete blood count with a

6

10:43:25

6 differential.

7

10:43:26

7

Q.

Okay.

8

10:43:27

8

A.

What he wanted to do was delete the CBC and

9

10:43:33

9 only offer the CBC with differential, which would

CBC with

What happened?

10

10:43:36 10 have been a compliance issue, because then the CBC is

11

10:43:40 11 less expensive.

12

10:43:45 12 take up to the compliance committee.

13

10:43:47 13

Q.

Okay.

14

10:43:51 14

A.

The CBC and CBC with differential remained

15

10:43:55 15 on the test menu.

16

10:43:57 16

Q.

Okay.

17

10:43:58 17

A.

So we did not delete it.

18

10:43:59 18

Q.

Did not delete it.

19

10:44:00 19

A.

Did not.

20

10:44:02 20

Q.

Okay.

21

10:44:05 21

A.

No.

22

10:44:06 22

Q.

So he took it in stride?

23

10:44:08 23

A.

Yes.

24

10:44:08 24

Q.

Was he respectful -- was Dr. Jadwin

25

10:44:10 25 respectful toward you?

So that's another one that I had to

And what was the outcome?

Did Dr. Jadwin hold that against you?

MartinezG

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

Document 277-2

Filed 12/01/2008

Page 69 of 245 123

1

10:44:11

1

A.

Yes.

2

10:44:12

2

Q.

Was Dr. Jadwin unfriendly at any time?

3

10:44:16

3

A.

Towards me?

4

10:44:20

4

Q.

Yes.

5

10:44:20

5

A.

Unprofessional.

6

10:44:22

6

Q.

He was unprofessional to you?

7

10:44:23

7

A.

Yes.

8

10:44:24

8

Q.

How was Dr. Jadwin unprofessional to you?

9

10:44:27

9

A.

Well, he had wanted me to step down and he

10

10:44:29 10 wanted to put the medical secretary in charge of the

11

10:44:32 11 lab.

12

10:44:32 12

13

10:44:33 13

14

10:44:35 14 knowledge?

15

10:44:36 15

16

10:44:37 16 that with me.

17

10:44:38 17

18

10:44:41 18 the head of the laboratory?

19

10:44:43 19

A.

That was before Tracy.

20

10:44:56 20

Q.

That's fine.

21

10:44:57 21

22

10:45:02 22 explained to you why he wanted to elevate the

23

10:45:04 23 secretary to the lab management position?

24

10:45:06 24

A.

No.

25

10:45:06 25

Q.

And what position was he proposing to put

Q.

I see. Why would he want to do that, to your

A.

Q.

That, I do not know.

He did not discuss

Which secretary did he want to elevate to

I forget her name.

Did he ever explain -- so Dr. Jadwin never

MartinezG

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

Document 277-2

Filed 12/01/2008

Page 70 of 245 124

1

10:45:08

1 you in?

2

10:45:09

2

A.

He did not specify.

3

10:45:11

3

Q.

I see.

4

10:45:12

4

A.

But I told him I would not -- I would step

5

10:45:16

5 down and be in charge of the laboratory information

6

10:45:18

6 system, which was one of my previous duties --

7

10:45:20

7

Q.

Correct.

8

10:45:21

8

A.

-- and maybe some bench work, but no

9

10:45:23

9 personnel.

10

10:45:28 10

Q.

You said there was another incident as well

11

10:45:30 11 with Dr. Jadwin being unprofessional.

12

10:45:33 12

A.

No.

13

10:45:34 13

Q.

That was it.

14

10:45:35 14

15

10:45:38 15 Dr. Jadwin came to the hospital around 2000.

16

10:45:45 16

17

10:45:48 17 around there.

18

10:45:49 18

19

10:46:04 19 self-righteous?

20

10:46:04 20

A.

No.

21

10:46:06 21

Q.

No.

22

10:46:06 22

23

10:46:08 23 found Dr. Jadwin to be intimidating?

24

10:46:12 24 can't remember which one it was.

25

10:46:13 25

That was it.

Okay.

A.

Q.

When did that happen roughly?

I don't know.

Okay.

Okay.

A.

What was that?

Maybe 2004, 2005, somewhere

Did you ever find Dr. Jadwin to be

Earlier you said that other people

Overbearing.

MartinezG

Or was it -- I

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

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Page 71 of 245 127

1

10:48:09

1

2

10:48:11

2 hematology department, but I don't recall which ones.

3

10:48:18

3

4

A.

Document 277-2

Q.

I believe it was some of the techs in the

These are people working beneath Jane

4 Thornton?

5

10:48:21

5

A.

Yes.

6

10:48:22

6

Q.

And there were how many techs in the

7

10:48:22

7 hematology department?

8

10:48:23

8

A.

There was only about two others.

9

10:48:25

9

Q.

Okay.

10

10:48:26 10

A.

I'm not sure specifically.

11

10:48:28 11

Q.

I see.

12

10:48:28 12

13

10:48:30 13

A.

Yeah.

14

10:48:30 14

Q.

-- they were complaining.

15

10:48:31 15

16

10:48:36 16

17

10:48:38 17 or through others.

18

10:48:41 18

19

10:48:51 19 personnel leaving the hospital because Dr. Jadwin was

20

10:48:55 20 driving them out?

21

10:49:05 21

A.

No.

22

10:49:10 22

Q.

Did you have any occasion to see Dr. Jadwin

23

10:49:13 23 lose his temper, become angry?

24

10:49:23 24

A.

Yes.

25

10:49:42 25

Q.

Can you describe the incident when he lost

So both of them would complain?

You heard through the grapevine that --

Did you hear it through Jane Thornton? A.

Q.

I don't know if it was through Jane Thornton

Okay.

Are you aware of any of the lab

MartinezG

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

Document 277-2

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Page 72 of 245 128

1

10:49:43

1 his temper?

2

10:49:44

2

3

10:49:47

3 when we had an inspection and he was not present.

4

10:49:52

4 the inspection team came up, and I showed them -- the

5

10:49:57

5 inspectors around -- I gave them a general tour of

6

10:49:59

6 the laboratory.

7

10:50:01

7 already here and he -- he was extremely upset, said

8

10:50:07

8 it was totally mishandled, et cetera.

9

10:50:12

9 visibly upset.

A.

Well, it was when he became pretty angry So

And then he came in after they were

He was pretty

10

10:50:14 10

Q.

At you?

11

10:50:14 11

A.

Yes.

12

10:50:14 12

Q.

Well, when you say he was visibly upset,

13

10:50:16 13 what -- what was visible about his upset?

14

10:50:19 14 you know he was upset?

15

10:50:20 15

A.

Well, the comment that he made.

16

10:50:24 16

Q.

What was the comment?

17

10:50:25 17 just said.

18

10:50:26 18

A.

No.

19

10:50:27 19

Q.

Okay.

20

10:50:29 20

A.

If he had a gun -- a gun he would have shot

21

10:50:33 21 someone.

22

10:50:33 22

Q.

That's what he said?

23

10:50:34 23

A.

Yes.

24

10:50:34 24

Q.

So did you take that to literally mean he

25

10:50:37 25 would bring a gun to the hospital and shoot somebody?

How did

Just the comment you

Right?

What was his comment?

MartinezG

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

Document 277-2

Filed 12/01/2008

Page 73 of 245 129

1

10:50:39

1

A.

I just dismissed it and....

2

10:50:42

2

Q.

So you didn't go to the police and file a --

3

10:50:44

3

A.

No.

4

10:50:44

4

Q.

-- report or you didn't go to administration

5

10:50:46

5 and file a workplace violence complaint or anything

6

10:50:49

6 like that?

7

10:50:49

7

8

10:50:52

8 specifically either the manager's going to go or the

9

10:50:55

9 director's going to go.

A.

No.

Because at the time Mr. Bryan had said

10

10:50:56 10

Q.

Who said that?

11

10:50:57 11

A.

Mr. Bryan, Peter, the CEO.

12

10:51:00 12

Q.

Oh, I see.

13

10:51:01 13

A.

So it would have meant that I would have

14

10:51:03 14 left.

15

10:51:04 15

16

10:51:05 16

17

10:51:10 17 with Dr. Jadwin happen where he got angry at you?

18

10:51:14 18

19

10:51:16 19 inspections -- three inspections ago.

20

10:51:20 20

Q.

So, what, three years ago?

21

10:51:23 21

A.

About three years ago, yeah.

22

10:51:25 22 Maybe longer than that.

23

10:51:27 23

Q.

So perhaps before 2005?

24

10:51:29 24

A.

Yeah.

25

10:51:30 25

Q.

Okay.

Q.

I see. Okay.

A.

I see.

Now, when -- when did this incident

I think it was an inspection about three

Well, no.

Did Dr. Jadwin ever apologize to you

MartinezG

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

Document 277-2

Filed 12/01/2008

Page 74 of 245 130

1

10:51:36

1 about that or did you ever discuss it again with

2

10:51:37

2 Dr. Jadwin?

3

10:51:38

3

A.

No.

4

10:51:42

4

Q.

Okay.

5

10:51:50

5 he just said I'll shoot someone?

6

10:51:53

6

A.

Correct.

7

10:51:53

7

Q.

So he wasn't necessarily threatening you

8

10:51:55

8 physically, was he?

9

10:51:56

9

A.

Physically?

10

10:51:57 10

Q.

Yeah.

11

10:51:58 11

A.

No.

12

10:52:00 12

Q.

Dr. Jadwin's a tall man.

13

10:52:03 13 around six, three, six, four.

14

10:52:05 14

15

10:52:08 15 you?

16

10:52:08 16

A.

No.

17

10:52:09 17

Q.

How tall are you, roughly?

18

10:52:11 18

A.

About five, ten.

19

10:52:12 19

Q.

Okay.

20

10:52:15 20 intimidated because of his physical size?

21

10:52:16 21

A.

No.

22

10:52:22 22

Q.

Had there been a lot of defections in the

23

10:52:24 23 laboratory in the last few years?

24

10:52:27 24 defections, I mean personnel leaving the laboratory.

25

10:52:30 25

No one ever brought it up again. So he didn't say he would shoot you;

I believe he's

Was he ever physically aggressive toward

A.

Did you ever feel a little bit

When I say

It's probably normal attrition, but the --

MartinezG

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

Document 277-2

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Page 75 of 245 133

1

10:54:35

1 Dr. Jadwin on, say, a weekly basis while working

2

10:54:38

2 together?

3

10:54:41

3

4

10:54:44

4 the hallway, or he might just come into my office or

5

10:54:46

5 I might go into his office.

6

10:54:51

6 two days or so.

7

10:54:53

7

Q.

Relatively frequent?

8

10:54:55

8

A.

Frequently frequent, yes.

9

10:54:57

9

Q.

And when you did interact, was it for pretty

A.

Most of them were informal, just mainly in

So at least once every

10

10:55:00 10 extended periods of time or was it just quickly?

11

10:55:04 11

A.

It was brief.

12

10:55:05 12

Q.

Brief?

13

10:55:05 13

A.

Yeah.

14

10:55:08 14 he'd want a chair or whatever.

15

10:55:13 15 come to me first, and then I'd get whatever he

16

10:55:15 16 wanted.

17

10:55:15 17

18

10:55:18 18 Dr. Jadwin?

19

10:55:18 19

A.

Yes.

20

10:55:19 20

Q.

So you feel -- did you feel like you got to

21

10:55:22 21 know him pretty well as a general?

22

10:55:27 22

A.

Yes.

23

10:55:29 23

Q.

Were you aware Dr. Jadwin was attempting to

24

10:55:32 24 start a company up called Columbia Healthcare

25

10:55:36 25 Analytics?

Q.

Maybe some issue would come up or He'd usually just

So relatively frequent interactions with

MartinezG

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

Document 277-2

139 Page 76 of 245

Filed 12/01/2008

STATE OF CALIFORNIA ss. COUNTY OF KERN

I,

Susan R. Wood,

a Certified Shorthand

Reporter in the State of California, Certificate No. GILBERT R.

6829,

MARTINEZ,

deposition,

holding

do hereby certify that the witness named in the foregoing

was by me duly sworn; that said deposition

was taken Wednesday, April 16,

2008,

at the time and

place set forth on the first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action,

nor

in any way interested in the result or outcome thereof. Dated this 19th day of May, Bakersfield,

2008,

at

California.

~-

Susan R.

Wood,

WOOD & RANDALL (800) 322-4595

CSR No.

6829

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

Document 277-2

Filed 12/01/2008

Page 77 of 245

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

EXHIBIT 9

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

14

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13

VIDEOTAPED DEPOSITION

14

OF

15

ALAN SCOTT RAGLAND, M.D.

16

Friday, August 22, 2008

17

Bakersfield, California

18 19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

RaglandA

Page 78 of 245 1

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

Document 277-2

Filed 12/01/2008

Page 79 of 245 8

1

09:20:49

1 drugs, medication or alcohol in the last 24 hours?

2

09:20:52

2

A.

No.

3

Q.

Okay.

3

Well, no -- yes. What --

4

09:20:55

4

A.

I took two aspirin this morning.

5

09:20:57

5

Q.

Okay.

6

09:21:00

6 testimony today, correct?

7

09:21:01

7

A.

I don't believe so.

8

09:21:01

8

Q.

Okay.

9

09:21:04

9 just as a reminder, but even expert deponents get

That's not going to affect your

And the last thing I just have to --

10

09:21:08 10 this wrong all the time.

Just please refrain from

11

09:21:11 11 speaking until I finish my question, and the reason

12

09:21:13 12 why is it is a courtesy to the reporter, she can only

13

09:21:17 13 record one person speaking at a time.

14

09:21:19 14

15

09:21:20 15

A.

Yes.

16

09:21:20 16

Q.

Doctor, what's your current position at the

17

09:21:23 17 hospital?

18

09:21:24 18

A.

Faculty in the internal medicine department.

19

09:21:28 19

Q.

You're not a chair of a department, correct?

20

09:21:31 20

A.

Correct.

21

09:21:31 21

Q.

You're not a vice chair either, right?

22

09:21:34 22

A.

Correct.

23

09:21:34 23

Q.

Okay.

24

09:21:37 24 of the medical staff?

25

09:21:38 25

Do you understand?

A.

Are you currently the past president

Yes.

RaglandA

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

Q.

Document 277-2

Filed 12/01/2008

Page 80 of 245 9

1

09:21:38

1

2

09:21:43

2 officer position, correct?

3

09:21:44

3

A.

Yes.

4

09:21:44

4

Q.

When were you the president of the medical

5

09:21:48

5 staff?

6

09:21:52

6

7

09:21:57

7 would be two years before that.

8

09:21:58

8

Q.

Okay.

9

09:22:02

9

A.

July 1st, '06, would be the beginning; July

A.

And that is a -- that's a medical staff

My term ended in July 1st of '08.

So it

So the -- I understood that --

10

09:22:06 10 1st, '08, would be the end.

11

09:22:07 11

12

09:22:18 12 Dr. Jadwin?

13

09:22:19 13

A.

Yes.

14

09:22:19 14

Q.

Please estimate the frequency with which you

15

09:22:21 15 had interactions with Dr. Jadwin throughout his

16

09:22:25 16 tenure at Kern Medical Center.

17

09:22:27 17

A.

Twice a week.

18

09:22:29 18

Q.

Twice a week.

19

09:22:31 19

20

09:22:32 20 what was the nature of those meetings or interactions

21

09:22:36 21 with Dr. Jadwin?

22

09:22:38 22

23

09:22:40 23 on blood usage, any other functions of patient care.

24

09:22:43 24

25

09:22:48 25 Dr. Jadwin were in his capacity as the director of

Q.

Okay.

Did you have any interactions with

Why were you interacting?

A.

Q.

What were the --

Perhaps to discuss a case, perhaps to work

And so many of your interactions with

RaglandA

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

Document 277-2

Filed 12/01/2008

Page 81 of 245 23

1

09:34:05

1 competence, right?

2

09:34:05

2

3

09:34:07

3 everybody in the room.

4

09:34:08

4

5

09:34:10

5 each individual, right?

6

09:34:11

6

A.

Sure.

7

09:34:11

7

Q.

Okay.

8

09:34:15

8 individualized insult to Mr. Bryan regarding his

9

09:34:17

9 competence?

A.

Q.

I remember he was generally insulting to

Okay.

But then you said he tailored it to

So you recall him giving a -- an

10

09:34:18 10

A.

No.

11

09:34:18 11

Q.

You don't?

12

09:34:19 12

A.

No.

13

09:34:20 13

Q.

Then what was the individualized compe- --

14

09:34:25 14 insult to Mr. Bryan about then?

15

09:34:30 15

A.

Okay.

16

09:34:31 16

Q.

I'm not asking you for the words.

17

09:34:32 17

A.

Okay.

18

09:34:32 18

Q.

I'm asking for what the content was.

19

09:34:35 19

A.

I already told you that.

20

09:34:37 20

Q.

No, you didn't.

21

09:34:38 21

A.

Insulting to everybody in the room.

22

09:34:40 22 I don't remember the details.

23

09:34:41 23

24

09:34:45 24 said to everybody that they were incompetent in the

25

09:34:47 25 room.

Q.

I don't remember the words.

Okay?

Doctor, you just said a minute ago that he

I'm asking you -- and then you said he

RaglandA

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

Document 277-2

Filed 12/01/2008

Page 82 of 245 24

1

09:34:50

1 specialized that insult to each person.

2

09:34:52

2

3

09:34:55

3 insult to Mr. Bryan regarding his competence or not?

4

09:34:59

4

A.

I don't recall.

5

09:34:59

5

Q.

Okay.

6

09:35:03

6 specialized insult regarding competence did he direct

7

09:35:06

7 at Ms. Abraham?

8

09:35:07

8

A.

I don't remember.

9

09:35:08

9

Q.

You just recall that he insulted her

I'm asking you, did he give a specialized

Now, how about Jennifer Abraham, what

10

09:35:10 10 competence then?

11

09:35:11 11

A.

I recall that he insulted my competence.

12

09:35:13 12

Q.

What about -- I'm talking about Dr. Abraham

13

09:35:16 13 right now.

14

09:35:16 14

A.

I understand that.

15

09:35:18 15

Q.

Okay.

16

09:35:21 16 competence, then, to your recollection?

17

09:35:23 17

A.

I don't remember.

18

09:35:23 18

Q.

Okay.

19

09:35:27 19 direct a specialized insult regarding Dr. Harris'

20

09:35:30 20 competence at him?

21

09:35:31 21

A.

I don't recall.

22

09:35:32 22

Q.

Did he insult Dr. Harris' competence on an

23

09:35:35 23 individualized basis?

24

09:35:37 24

A.

I don't recall.

25

09:35:37 25

Q.

Okay.

So did he insult Dr. Abraham's

How about Dr. Harris, how did he

So as far as you can recall, the only

RaglandA

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

Document 277-2

Filed 12/01/2008

Page 83 of 245 54

1

10:00:58

1 complete --

2

10:00:59

2

3

10:01:02

3 restore confidence in the pathology department during

4

10:01:05

4 Dr. Jadwin's tenure at the hospital?

5

10:01:07

5

A.

Because Dr. Jadwin wasn't very cooperative.

6

10:01:11

6

Q.

So -- because he wasn't cooperative with

7

10:01:14

7 whom?

8

10:01:15

8

A.

With everybody.

9

10:01:16

9

Q.

Everybody.

10

10:01:19 10

A.

Yes.

11

10:01:19 11

Q.

You -- when you say "he wasn't cooperative

12

10:01:23 12 with everybody," you mean to include every chair of

13

10:01:29 13 every department for instance, right?

14

10:01:31 14

A.

As far as I know.

15

10:01:32 15

Q.

Okay.

16

10:01:34 16 didn't get along or cooperate with any department

17

10:01:36 17 chair, right?

18

10:01:37 18

A.

Not that I'm aware of.

19

10:01:38 19

Q.

Okay.

20

10:01:40 20 any core physician at Kern Medical Center, right?

21

10:01:42 21

A.

Not that I'm aware.

22

10:01:45 22

Q.

Do you -- to your knowledge, did the

23

10:01:51 23 president take any steps to restore confidence in the

24

10:01:53 24 pathology department during --

25

10:01:54 25

Q.

A.

Yeah.

Do you know why the president did not

You mean that literally, right?

Doctor, to your knowledge, Dr. Jadwin

He didn't get along or cooperate with

Yes.

RaglandA

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

Q.

Document 277-2

Filed 12/01/2008

Page 84 of 245 61

1

10:08:18

1

I wasn't complete, Doctor.

2

10:08:19

2

3

10:08:22

3 of the court reporter actually, not for my sake.

4

10:08:24

4 Okay?

5

10:08:24

5

6

10:08:26

6 this E-mail you've just referenced to your attorneys

7

10:08:29

7 in response to any request for documents in this

8

10:08:31

8 action?

9

10:08:36

9

A.

No.

10

10:08:36 10

Q.

Were you aware that in this action documents

11

10:08:42 11 were requested with regard to Dr. Jadwin to be

12

10:08:46 12 produced?

13

10:08:50 13

A.

No.

14

10:08:50 14

Q.

No one came to you and told you to not -- to

15

10:08:56 15 collect evidence and not destroy it in connection

16

10:09:02 16 with this case?

17

10:09:04 17

A.

No.

18

10:09:04 18

Q.

And you're certain about that, right?

19

10:09:11 19

A.

Yes.

20

10:09:11 20

Q.

Okay.

21

10:09:16 21 you've just referenced today?

22

10:09:23 22

A.

No.

23

10:09:23 23

Q.

Why not?

24

10:09:29 24

A.

I don't have it.

25

10:09:30 25

Q.

Why not?

And I'm asking you to do that for the sake

You don't recall handing this -- a copy of

If -- could you produce this E-mail

RaglandA

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

Document 277-2

Filed 12/01/2008

Page 85 of 245 63

1

10:10:32

1

A.

No.

2

10:10:32

2

Q.

Okay.

3

10:10:48

3 E-mail asking who he could trust to sit on a

4

10:10:52

4 committee, but that no longer exists.

5

10:10:54

5 him -- and he responded that no one, he couldn't

6

10:10:57

6 think of anybody, that they would all rubber stamp

7

10:11:00

7 decisions, right?

8

10:11:04

8 Dr. Jadwin's E-mail that he responded to you saying

9

10:11:07

9 no one?

So you sent Dr. Jadwin this alleged

And you told

And you don't have -- do you have

10

10:11:08 10

A.

That's two questions.

11

10:11:09 11

Q.

Okay.

12

10:11:12 12 question.

13

10:11:12 13

14

10:11:14 14 told you no one?

15

10:11:15 15

A.

No.

16

10:11:15 16

Q.

Is that because you deleted it as well?

17

10:11:19 17

A.

Yes.

18

10:11:19 18

Q.

Why did you delete these E-mails?

19

10:11:23 19

A.

Because I delete my E-mails.

20

10:11:24 20

Q.

You delete -- what was -- I'm sorry, Doctor.

21

10:11:29 21 You just engaged in a facial expression.

22

10:11:31 22

23

10:11:33 23

A.

I think your question's silly.

24

10:11:34 24

Q.

Okay.

25

10:11:37 25

Well, why don't we take the second

Do you have this E-mail where Dr. Jadwin

What was the significance of that?

I will try to do better, Doctor.

Now, how do you choose which E-mails to

RaglandA

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

Document 277-2

Filed 12/01/2008

Page 86 of 245 69

1

10:16:01

1 of your eyes, and then take the document away?

They

2

10:16:04

2 don't hand it to you?

3

10:16:05

3

A.

Sure, they hand it to me.

4

10:16:06

4

Q.

Okay.

5

10:16:08

5 possession in connection with this investigation,

6

10:16:10

6 didn't you?

7

10:16:10

7

A.

Define what you mean by "in my possession."

8

10:16:13

8

Q.

You were holding it, weren't you?

9

10:16:14

9

A.

No.

So you did have documents in your

Are you talking about holding it in my

10

10:16:16 10 hand or holding it for storage in a file?

11

10:16:18 11

12

10:16:21 12 gave you a document, what did you do with it?

13

10:16:22 13

A.

Read it.

14

10:16:23 14

Q.

Where?

15

10:16:24 15

A.

Where they handed it to me.

16

10:16:25 16

Q.

Standing in front of the person who gave it

17

10:16:27 17 to you?

18

10:16:28 18

A.

Most likely, yes.

19

10:16:29 19

Q.

And then you would hand it back to them?

20

10:16:32 20

A.

Yes.

21

10:16:32 21

Q.

Okay.

22

10:16:34 22 regarding this investigation into Dr. Jadwin to

23

10:16:37 23 anybody?

24

10:16:40 24

25

10:16:42 25 lawyers.

Q.

A.

Okay.

In this investigation when someone

Did you give any documentation

Yes, I gave that one form that I had to the

RaglandA

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

Q.

Document 277-2

Filed 12/01/2008

Page 87 of 245 70

1

10:16:42

1

2

10:16:46

2 you gave this document to the lawyers?

3

10:16:48

3

A.

I handed it to them.

4

10:16:49

4

Q.

Why?

5

10:16:51

5

A.

Because it was part of this lawsuit.

6

10:16:54

6

Q.

Oh, so now you do recall the lawyers asking

7

10:16:57

7 for documents as part of this lawsuit?

8

10:16:59

8 that now?

9

10:17:06

9

A.

Oh, so now you do recall -- how was it that

You recall

A minute ago you said they didn't. I don't think they asked me for it because I

10

10:17:09 10 don't think they knew it existed.

11

10:17:10 11

Q.

So how did you end up giving it to them?

12

10:17:14 12

A.

I asked the secretary if she could go

13

10:17:16 13 through all the stuff and see if she had that

14

10:17:21 14 document from the fine needle information, and she

15

10:17:27 15 dug it out and I handed it to them.

16

10:17:29 16

17

10:17:32 17 Did they ask for it?

18

10:17:33 18

A.

No.

19

10:17:36 19

Q.

Then why would you hand it to them?

20

10:17:39 20

A.

Because I was being sued by Dr. Jadwin.

21

10:17:41 21

Q.

And so you just felt it appropriate to, on

22

10:17:44 22 your own initiative, just produce this one fine

23

10:17:47 23 needle report -- fine needle aspiration report to

24

10:17:49 24 your attorneys?

25

10:17:51 25

Q.

A.

And why would you hand it to the lawyers?

They didn't know it existed.

I felt it was more appropriate than keeping

RaglandA

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1

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1 it in my possession solely, yes.

2

10:17:56

2

3

10:17:58

3 you --

4

10:17:59

4

A.

I don't recall.

5

10:17:59

5

Q.

You don't recall the year, right?

6

10:18:01

6

A.

No.

7

10:18:01

7

Q.

You don't recall whether it was before or

8

10:18:03

8 after Dr. Jadwin had left of the hospital, right?

9

10:18:05

9

Q.

A.

Okay.

When did this happen?

When did

It was after Dr. Jadwin had left the

10

10:18:07 10 hospital.

11

10:18:07 11

12

10:18:09 12 lawyers asking you for any and all documents relating

13

10:18:12 13 to Dr. Jadwin in this action?

14

10:18:14 14

A.

I don't recall.

15

10:18:14 15

Q.

But you do recall feeling it made sense for

16

10:18:20 16 you to give this fine needle aspiration report to the

17

10:18:22 17 lawyers, right?

18

10:18:26 18

A.

Yes.

19

10:18:26 19

Q.

Nobody asked you to do that; the lawyers

20

10:18:29 20 didn't ask you, you just volunteered it, didn't you?

21

10:18:32 21

A.

Yes.

22

10:18:32 22

Q.

All right.

23

10:18:35 23 Why not anything else?

24

10:18:36 24

A.

Because that's all I had.

25

10:18:37 25

Q.

You destroyed everything else, right?

Q.

Oh, okay.

But -- and you don't recall the

Why that particular document?

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1

11:39:29

1 it.

2

11:39:30

2

Q.

You just didn't think about it, huh?

3

11:39:33

3

A.

Dr. Jadwin made no complaint to me about the

4

11:39:35

4 breach of his investigation.

5

11:39:36

5

Q.

How would he have known?

6

11:39:38

6

A.

How would he have known?

7

11:39:40

7

Q.

Yeah, that it was breached?

8

11:39:42

8

A.

He's all knowing.

9

11:39:43

9

Q.

You're being sarcastic now?

10

11:39:45 10

A.

Absolutely.

11

11:39:46 11

Q.

Okay.

12

11:39:48 12 meeting where Dr. Jadwin called you incompetent?

13

11:39:51 13

14

11:39:53 14 have here.

15

11:39:54 15

16

11:39:56 16 personal setting?

A.

Q.

Okay.

Were you sarcastic like this at the

No, I got up and left, an option I don't

You consider this a professional or a

17

17

MR. WASSER:

18

18 BY MR. LEE:

You're asking me?

19

11:40:00 19

Q.

This is a professional setting, right?

20

11:40:04 20

A.

Correct.

21

11:40:04 21

Q.

You're being -- you're being sarcastic in a

22

22 professional setting, correct?

23

23

A.

Correct.

24

11:40:09 24

Q.

That's not what you said earlier, wasn't it?

25

25 You said you're never sarcastic -- you're not

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11:50:49

1 so four to eight.

2

11:50:52

2

Q.

Yes, May of 2004.

3

11:50:55

3

A.

No.

4

11:50:56

4

Q.

You were not a -- you were not an immediate

5

11:51:01

5 past president, you weren't a president elect, you

6

11:51:04

6 weren't a president, correct?

7

11:51:06

7

8

11:51:11

8 to 2006; president, 2006 to 2008, July being the --

9

11:51:15

9 July 1st being the change date; now a past president.

A.

Q.

So May?

I believe I was president elect in July 2004

10

11:51:19 10

Is it a part of the skills of a medical

11

11:51:35 11 staff officer to be able to accurately read an FNA

12

11:51:39 12 report?

13

11:51:43 13

A.

No.

14

11:51:43 14

Q.

No.

15

11:51:49 15

16

11:51:52 16 medical staff officer to be able to interpret an

17

11:51:57 17 outside F -- outside consultant FNA report

18

11:52:00 18 accurately?

19

11:52:00 19

A.

Yes.

20

11:52:00 20

Q.

Yes.

21

11:52:04 21

22

11:52:07 22 review of Dr. Lieu's FNA consultant report, is that

23

11:52:13 23 Dr. Jadwin was the source of the problem; is that

24

11:52:15 24 correct?

25

11:52:16 25

Is it -- is it part of the skills of a

Okay.

So your conclusion, based upon your careful

A.

No.

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1

A.

No, I said I had no objective data.

2

12:11:10

2

Q.

I asked you if you had any non-objective

3

12:11:13

3 data, and you said no.

4

12:11:15

4 any objective data, and you said no.

5

12:11:19

5

6

12:11:23

6 this objective or non-objective data.

7

12:11:26

7 of FNA reports that I went through that were double

8

12:11:32

8 reads from UCLA, and they really were not able to be

9

12:11:36

9 interpreted because all of -- almost 90 percent of

A.

All right.

I've asked you if you've had

I don't know if you want to term I had a stack

10

12:11:40 10 the final dates of issue were after the final -- the

11

12:11:43 11 read came back from UCLA.

12

12:11:45 12

13

12:11:48 13 that Dr. Jadwin was going back and changing his

14

12:11:53 14 initial diagnosis to match that of UCLA's; is that

15

12:11:57 15 correct?

16

12:11:57 16

17

12:12:00 17 objective data.

18

12:12:00 18

19

12:12:03 19 came after the UCLA report had come in; is that

20

12:12:06 20 correct?

21

12:12:07 21

A.

That's correct.

22

12:12:07 22

Q.

And you couldn't be sure whether Dr. Jadwin

23

12:12:09 23 was just issuing a final report that just matched

24

12:12:12 24 UCLA's, right?

25

12:12:15 25

Q.

A.

Q.

A.

And in your mind that raised the possibility

No, I'm telling you that it doesn't make it

Because the final report from Dr. Jadwin

That's correct.

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1

2

12:12:17

2 waiting for the UCLA report to come in to then make

3

12:12:22

3 sure that he could issue his final report to have a

4

12:12:26

4 hundred percent congruence with UCLA, correct?

5

12:12:27

5

A.

That's correct.

6

12:12:28

6

Q.

Did you ever talk to Dr. Jadwin?

7

12:12:29

7

A.

Not after that point.

8

12:12:30

8

Q.

At any point regarding this issue?

9

12:12:34

9

A.

He handed me this stack of them and said

10

Q.

Document 277-2

You couldn't be sure that Dr. Jadwin was not

12:12:36 10 "Look at them," in a rather angry tone.

11

11

Q.

Yeah.

And you were --

12

12:12:40 12

A.

He gave them to me to look at.

13

12:12:42 13

Q.

You were very calm and peaceable with him,

14

12:12:45 14 weren't you?

15

12:12:45 15

A.

Tried to be.

16

12:12:46 16

Q.

Very temperate and moderate, right?

17

12:12:49 17

A.

As much as possible.

18

12:12:50 18

Q.

Right.

19

12:12:53 19 extremely calm and composed whenever you dealt with

20

12:12:55 20 him, right?

21

12:13:00 21

22

12:13:02 22

A.

The best of my ability.

23

12:13:03 23

Q.

What does that mean?

24

12:13:06 24 successful?

25

12:13:06 25

Whenever he yelled at you, you were

Is that a yes or no?

A.

You weren't

It means I don't remember any specific

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12:13:08

1 events.

2

12:13:11

2 when he called me incompetent, because I couldn't,

3

12:13:15

3 you know, be objective at that point, so I would get

4

12:13:17

4 up and leave.

5

12:13:18

5

6

12:13:21

6 weren't you?

7

12:13:21

7

A.

As patient as I could be.

8

12:13:22

8

Q.

You were very accommodating and

9

12:13:25

9 understanding to Dr. Jadwin always, right?

Q.

I would get up and leave the room like I did

You were very patient with Dr. Jadwin,

10

12:13:29 10

A.

Accommodating?

11

12:13:35 11

Q.

I'll ask you another question.

12

12:13:36 12

13

12:13:38 13 you dealt with Dr. Jadwin, right?

14

12:13:40 14

A.

Tried to be.

15

12:13:40 15

Q.

Tried to be.

16

12:13:43 16 always successful?

17

12:13:44 17

18

12:13:46 18 not.

19

12:13:47 19

20

12:13:53 20 to Dr. Jadwin as to whether or not he was issuing his

21

12:13:56 21 final FNA reports after UCLA's report had come in to

22

12:14:01 22 have an artificial hundred percent congruence?

23

12:14:05 23

A.

No.

24

12:14:06 24

Q.

Why not?

25

12:14:07 25

A.

Well, he handed me the data.

You were always very reasonable in the way

Does that mean you weren't

A.

I can't recollect any incidents where I was

Q.

So you never -- you never thought to speak

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

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1

12:14:09

1 was aware of it.

2

12:14:10

2

Q.

You make a lot of assumptions, don't you?

3

12:14:12

3

A.

Well, when there's like 11 months between

4

12:14:14

4 when the pathology sample was selected and the review

5

12:14:19

5 was done, and the final didn't come out for that 11

6

12:14:22

6 months, what conclusion would you draw?

7

12:14:26

7

8

12:14:29

8 the FNAs, he never sent initial diagnoses, did he?

9

12:14:35

9

Q.

A.

When Dr. Jadwin sent reports out to UCLA,

I don't know.

I was handed a stack of

10

12:14:36 10 papers that had his reading -- I was handed a stack

11

12:14:40 11 of papers that had his reading and UCLA's reading.

12

12:14:43 12

13

12:14:46 13 you?

14

Q.

You never thought to ask Dr. Jadwin, did

12:14:46 14

A.

No.

15

12:14:47 15

Q.

You didn't think it was important to know

16

12:14:48 16 that, right?

17

12:14:49 17

A.

To know what?

18

12:14:50 18

Q.

To know whether or not he was issuing an

19

12:14:53 19 initial diagnosis on the FNAs to UCLA, and then they

20

12:14:57 20 were then issuing their diagnosis in congruence with

21

12:15:00 21 his.

22

12:15:03 22

23

12:15:05 23 report, which should have been out long before that,

24

12:15:07 24 and the dates of the UCLA.

25

12:15:11 25

You never thought to ask that, did you? A.

Q.

All I do is look at the dates of the final

It made the data useless.

And then you made your assumptions?

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

A.

Document 277-2

Filed 12/01/2008

1

12:15:13

1

2

12:15:16

2 useless, you couldn't decide one way or the other

3

12:15:19

3 whether he could read fine needles or not.

4

12:15:21

4

5

12:15:24

5 UCLA?

6

12:15:25

6

A.

No.

7

12:15:25

7

Q.

Why not?

8

12:15:26

8

A.

Why?

9

12:15:26

9

Q.

To find out what the story was.

10

12:15:28 10

A.

I had their readings.

11

12:15:31 11 double-blinded.

12

12:15:33 12 slide and no other information, and they're supposed

13

12:15:35 13 to send it back with their reading, and then you

14

12:15:38 14 compare it to his reading.

15

12:15:41 15 data.

16

12:15:41 16

Q.

And you know this because --

17

12:15:43 17

A.

But to -- I know that because that's simple

18

12:15:46 18 scientific method.

19

12:15:47 19

20

12:15:59 20 here today, you have no knowledge that -- of whether

21

12:16:01 21 Dr. Jadwin sent his initial diagnosis of slides to

22

12:16:05 22 UCLA prior to their issuing their report, their

23

12:16:08 23 outside report on FNAs; you don't know that, right?

24

12:16:11 24

A.

That's correct.

25

12:16:11 25

Q.

Sitting here today, do you think that would

Q.

Q.

I made no assumptions.

Page 95 of 245 175

The data was

Did you ever pick up the phone and call

Uh-huh.

It was supposed to be

You're supposed to send them the

That would be objective

So you have no knowledge -- sitting

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1

12:16:13

1 be important to know that?

2

12:16:14

2

A.

No.

3

12:16:15

3

Q.

Why not?

4

12:16:16

4

A.

Well -- okay, I'm sorry.

5

12:16:18

5 no, because I thought you said -- I meant -- I

6

12:16:20

6 thought you were asking me whether it was important

7

12:16:22

7 that you send the information down to UCLA.

8

12:16:26

8

9

12:16:28

9 would have been if the final dates had been, you

I misunder- -- no,

Was it important that I would know that?

It

10

12:16:32 10 know, before they had gone to UCLA, yes.

11

12:16:35 11

12

12:16:38 12 if there's an initial --

13

12:16:39 13

14

12:16:43 14 interpret data if the final report came out after the

15

12:16:46 15 UCLA report.

16

12:16:47 16

17

12:16:50 17 Couldn't you have called UCLA and asked them was

18

12:16:54 18 Dr. Jadwin sending you his initial diagnosis along

19

12:16:55 19 with the slides, and were you coming out with a

20

12:16:57 20 report that was in 100 percent congruence with his

21

12:17:02 21 initial diagnosis?

22

12:17:03 22

A.

What would be the reason for doing that?

23

12:17:06 23

Q.

To confirm with them that they were actually

24

12:17:09 24 finding a diagnosis that matched Dr. Jadwin's.

25

12:17:12 25

Q.

A.

Q.

A.

What's your fixation with these final dates,

It makes the data useless.

You can't

Well, couldn't you have done this, Doctor:

Couldn't you have done that?

Their job was just to read the slide and

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12:17:15

1 provide the data, not provide the comparison.

2

12:17:22

2

3

12:17:24

3 don't you, Doctor?

4

12:17:26

4

A.

Absolutely.

5

12:17:26

5

Q.

It's very important to draw conclusions on

6

12:17:28

6 objective data?

7

12:17:30

7

A.

Absolutely.

8

12:17:30

8

Q.

Subjective data's not a good -- it's

9

12:17:34

9 garbage, right?

Q.

A.

You believe in the power of objective data,

10

12:17:36 10

Well, sometimes it's all you have, but

11

12:17:38 11 generally, it's not good to base some -- you know, to

12

12:17:39 12 base decisions on only subjective data, yes.

13

12:17:42 13

Q.

Certainly not?

14

12:17:43 14

A.

Certainly not.

15

12:17:44 15

Q.

So in order to come to a conclusion as to

16

12:17:46 16 whether or not Dr. Jadwin was intentionally issuing a

17

12:17:50 17 final diagnosis on the FNAs so as to create an

18

12:17:54 18 artificial 100 percent congruence with UCLA, wouldn't

19

12:17:58 19 it have behooved you to find out whether he, in fact,

20

12:18:01 20 was sending initial diagnoses out to UCLA along with

21

12:18:05 21 the slides?

22

12:18:06 22

A.

I never drew that conclusion.

23

12:18:07 23

Q.

You didn't?

24

12:18:08 24

A.

I did not.

25

12:18:08 25

Q.

You said you suspected it, right?

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1

12:18:10

1

A.

I didn't think I said that either.

2

12:18:12

2

Q.

Sitting here today, do you think that

3

12:18:15

3 Dr. Jadwin may have done that?

4

12:18:17

4

A.

I have no opinion on that.

5

12:18:18

5

Q.

You have no opinion on that?

6

12:18:20

6

A.

Not particularly.

7

12:18:20

7

Q.

Did you ever voice that suspicion to anybody

8

12:18:22

8 that he was doing that, that he was artificially

9

12:18:25

9 creating a 100 percent congruence with UCLA by

10

12:18:29 10 ensuring that the final report was only released

11

12:18:31 11 after the UCLA report had come in?

12

12:18:34 12

A.

No.

13

12:18:34 13

Q.

You never stated that to anybody, right?

14

12:18:36 14

A.

I don't believe so.

15

12:18:37 15

Q.

You never sent an E-mail or --

16

12:18:40 16

A.

I don't believe so.

17

12:18:43 17

Q.

Well, that suspicion's pretty useless, too,

18

12:18:48 18 isn't it?

19

12:18:49 19

A.

Yes.

20

12:18:49 20

Q.

It's just rumor, gossip and speculation,

21

12:18:52 21 isn't it?

22

12:18:52 22

23

12:18:55 23 issued till after the UCLA reports were issued.

A.

It's useless data.

No, it's fact that the final reports weren't

24

24

Q.

Right.

25

12:18:59 25

A.

That's fact.

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

Q.

Document 277-2

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Page 99 of 245 181

1

12:20:30

1

-- wouldn't Dr. Jadwin have then reflected

2

12:20:32

2 that in the final report?

3

12:20:35

3

A.

No.

4

12:20:35

4

Q.

Why not?

5

12:20:35

5

A.

Because this was not sent out for that, it

6

12:20:37

6 was sent out for quality, okay?

7

12:20:41

7 the slides should have been sent blindly to UCLA, not

8

12:20:45

8 having Dr. Jadwin's initial pathology report, so

9

12:20:49

9 there's prejudicing of the pathologist who's reading

Isn't that reasonable?

To be done properly,

10

12:20:53 10 the second slide, and you take the reading from

11

12:20:56 11 Dr. Jadwin, which should be finalized before the UCLA

12

12:21:00 12 report is seen, and you take the UCLA report, and

13

12:21:02 13 then you compare them to see if there's a

14

12:21:05 14 discrepancy.

15

12:21:06 15 was useless.

16

12:21:08 16

Q.

And you're sure of that, right?

17

12:21:10 17

A.

Yes.

18

12:21:10 18

Q.

And you never talked to Dr. Jadwin, did you?

19

12:21:13 19

A.

No.

20

12:21:13 20

Q.

Did you ever speak to Dr. Dutt about this

21

12:21:16 21 UCLA FNA double read?

22

12:21:23 22

A.

I don't recall.

23

12:21:24 23

Q.

Did you think it was important to speak to

24

12:21:28 24 Dr. Dutt about it?

25

12:21:29 25

A.

That's not what happened, so the data

I asked -- at that point, no, because I

RaglandA

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

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1

12:21:35

1 think Dr. Jadwin was already gone.

2

12:21:37

2

Q.

So the issue was moot?

3

12:21:39

3

A.

At that point, yes.

4

12:21:40

4

Q.

Yeah.

5

12:21:43

5 there?

6

12:21:44

6

A.

Correct.

7

12:21:44

7

Q.

All right.

8

12:21:46

8 Dr. Jadwin was gone -- are you talking about December

9

12:21:49

9 7th, 2006?

The person in question was no longer

So there was no need -- once

10

12:21:50 10

A.

I don't know the date he left.

11

12:21:51 11

Q.

That's the date he was placed on

12

12:21:53 12 administrative leave.

13

12:21:55 13

A.

I don't know.

14

12:21:56 14

Q.

Okay.

15

12:21:58 15 was the date he was placed on administrative leave.

16

12:22:00 16

A.

Okay.

17

12:22:01 17

Q.

So after December 7, 2006, with Dr. Jadwin

18

12:22:06 18 gone, there was no need to conduct any investigation

19

12:22:07 19 of Dr. Jadwin, was there?

20

12:22:25 20

21

12:22:27 21 was incompetent and you needed to report it to the

22

12:22:30 22 medical board.

23

12:22:34 23 so.

24

12:22:34 24

25

12:22:37 25 might have and let's talk about what was done.

A.

Q.

I'm going to represent to you that

There might have been a need if you felt he

Okay.

But other than that, I don't think

Well, let's -- let's get away from

RaglandA

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

Document 277-2

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Page 101 of 245 219

1

14:25:18

1 unsatisfactory, right?

2

14:25:20

2

A.

Correct.

3

14:25:20

3

Q.

Why not?

4

14:25:21

4

A.

Why didn't it answer the question?

5

14:25:23

5

Q.

Didn't you pay the -- I mean, I assume this

6

14:25:28

6 consultant was paid a certain amount of money to do

7

14:25:30

7 this -- this report, time was spent with this

8

14:25:32

8 consultant, he -- he finalized a report, he did a

9

14:25:35

9 grand rounds lecture to which only a few people

10

14:25:38 10 showed up.

11

14:25:39 11

12

14:25:41 12 least resolve that issue?

13

14:25:42 13

14

14:25:46 14 so pathology and radiology could work together so we

15

14:25:52 15 could care for the patients.

16

14:25:52 16

17

14:25:53 17 hired a behavioral consultant to do that for you

18

What was all that exercise for if not to at

A.

Q.

To try to find a civilized, common pathway

You didn't think what -- couldn't you have

18 instead of a pathologist?

19

14:25:57 19

A.

20

14:26:00 20 could assess the needles used or the competency of

21

14:26:04 21 the radiologist in the number of passes taken.

22

14:26:07 22

23

14:26:13 23 FNA slides?

24

14:26:14 24

A.

Correct.

25

14:26:14 25

Q.

Okay.

Q.

I don't think the behavioral consultant

Or the competency of Dr. Jadwin in reading

So that's why you -- that's why this

RaglandA

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

Document 277-2

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Page 102 of 245 220

1

14:26:17

1 consultant was brought in, right?

2

14:26:18

2

3

14:26:21

3 believe -- at least the overall purpose was to try to

4

14:26:25

4 find a common pathway to see if we could improve the

5

14:26:29

5 relationship between pathology and radiology so we

6

14:26:32

6 could get fine needle aspirations on our patients

7

14:26:35

7 instead of having them feud all the time.

8

14:26:39

8

9

14:26:41

9 Dr. Jadwin and/or the radiologist, wasn't that part

A.

Q.

No, the consultant was brought in, I

Right.

And determining the competency of

10

14:26:44 10 of the study, the purpose of the study too?

11

14:26:47 11

A.

I don't know.

12

14:26:47 12

Q.

You don't know?

13

14:26:49 13

14

14:26:50 14

A.

Yes.

15

14:26:51 15

Q.

Okay.

16

14:26:52 16

A.

If we're talking about the same report.

17

14:26:57 17

18

14:26:59 18 the report is that Dr. Jadwin could improve on his

19

14:27:03 19 communication, and that we should use -- the

20

14:27:06 20 radiologists should use different needles.

21

14:27:08 21 the two things I remember from reading the report.

22

14:27:10 22

Q.

Do you recall how long the report was?

23

14:27:17 23

A.

No.

24

14:27:42 24

25

14:28:12 25 Could you mark this as 110, please?

You read the report though?

As I stated, the two things I took away from

MR. LEE:

Those are

I'm going to get an exhibit.

RaglandA

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

1

14:28:12

2

Document 277-2

Filed 12/01/2008

1

(Plaintiff's Exhibit No. 110

2

marked for identification.) THE WITNESS:

3

14:28:14

3

4

14:28:14

4 BY MR. LEE:

5

14:28:14

5

6

14:28:16

6 marked for identification as Exhibit 110.

7

14:28:20

7 take a moment to review it.

8

14:28:23

8

A.

Are we done with these?

9

14:28:25

9

Q.

You can leave them there.

Q.

Page 103 of 245 221

Thank you.

Doctor, you've just been handed a document Please

10

14:28:26 10

Actually, Doctor, I don't want to waste your

11

14:29:21 11 time.

12

14:29:23 12 it's about 30 or 40 pages long.

13

14:29:25 13 ask you if you can -- if you recognize it.

14

14:29:28 14

15

14:29:30 15 recognize it.

16

14:29:31 16

17

17

18

14:58:55 18

THE WITNESS:

19

14:58:56 19

MR. LEE:

20

14:58:58 20 when the last spoken statement was said, the time?

I don't think you need to read that report,

A.

Q.

I'm just going to

Oh, I'd have to read it to see if I

Okay. (Witness reviewed document.)

21

21

22

22 BY MR. LEE:

Okay.

Madame Reporter, can you state

THE COURT REPORTER:

Q.

Okay.

2:29.

23

14:59:07 23

Doctor, you've spent 31 minutes

24

14:59:15 24 reviewing that document, correct?

25

14:59:18 25 right?

RaglandA

It is what it is,

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

Document 277-2

Filed 12/01/2008

Page 104 of 245 222

1

14:59:18

1

A.

Yes.

2

14:59:19

2

Q.

Okay.

3

14:59:21

3

A.

Do you want me to include the table of

4

14:59:22

4 contents?

5

14:59:23

5

Q.

No.

6

14:59:31

6

A.

There are nine pages front and back.

7

14:59:34

7

Q.

Nine pages.

8

14:59:36

8

A.

Eighteen single-faced pages.

9

14:59:39

9

Q.

Okay.

How many pages in that document?

So you've reviewed it carefully now,

10

14:59:44 10 right?

11

14:59:45 11

A.

Yes.

12

14:59:45 12

Q.

And you reviewed it this carefully when you

13

14:59:48 13 first -- do you recognize this report?

14

14:59:49 14

A.

Yes.

15

14:59:50 15

Q.

What is it?

16

14:59:51 16

A.

It's the report from the fine needle

17

14:59:53 17 consultant brought in to solve our problems.

18

14:59:55 18

19

14:59:58 19 discussing this morning, correct?

20

15:00:00 20

A.

Yes, it is.

21

15:00:00 21

Q.

Okay.

22

15:00:04 22 this report?

23

15:00:04 23

A.

No.

24

15:00:04 24

Q.

Did you ever recall reading this report?

25

15:00:07 25

A.

I read a copy of this report.

Q.

So this is the consultant report we've been

And you recall receiving a copy of

RaglandA

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

Document 277-2

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Page 105 of 245 226

1

15:03:04

1 BY MR. LEE:

2

15:03:04

2

Q.

Either.

3

15:03:05

3

A.

Why don't you ask which question you want

4

15:03:06

4 answered?

5

15:03:08

5

Q.

Okay.

6

15:03:10

6

A.

It says that no dis- -- difficulties were

7

15:03:12

7 found, but it was a limited study and it was

8

15:03:12

8 retro-prospective, and a prospective study would be

9

15:03:13

9 more useful.

Either or both.

What about Dr. Jadwin's competency?

It also gave a method suggesting it

10

15:03:18 10 that, you know -- right here, "All imaging guided

11

15:03:23 11 that are determined unsatisfactory or limited should

12

15:03:26 12 be automatically referred to UCLA for a second

13

15:03:28 13 opinion; all relevant clinical, radiologic

14

15:03:31 14 information, including scan reports, should be sent

15

15:03:33 15 along with the slides."

16

15:03:35 16

Q.

Okay.

17

15:03:38 17

A.

Page 15 DFG 00267.

18

15:03:42 18

Q.

Okay.

19

15:03:45 19 determine whether or not Dr. Jadwin's diagnoses were

20

15:03:48 20 correct or not?

21

15:03:49 21

22

15:03:52 22 based on what he had.

23

15:03:54 23

Q.

I'm sorry, based on what he had?

24

15:03:57 24

A.

"No major discrepancies were discovered in

25

15:04:00 25 the slide reviews of previous unsatisfactory or

A.

What page are you reading from, sir?

So in other words, did Dr. Lieu

He determined that he had sufficient skill

RaglandA

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

Document 277-2

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Page 106 of 245 230

1

15:07:19

1 non-diagnostic samples; isn't that correct?

2

15:07:23

2

A.

That's correct.

3

15:07:23

3

Q.

Okay.

4

15:07:28

4 Dr. Jadwin's competency in recognizing non-diagnostic

5

15:07:31

5 and unsatisfactory samples, that was answered by

6

15:07:33

6 Dr. Lieu, wasn't it?

7

15:07:35

7

A.

Yes.

8

15:07:35

8

Q.

Okay.

9

15:07:39

9 answer -- that's certainly an indicator of

So that -- that question as to

And that's -- that's certainly an

10

15:07:42 10 Dr. Jadwin's competence as a pathologist, isn't it?

11

15:07:46 11

A.

His ability to read slides, yes.

12

15:07:47 12

Q.

Well, isn't that important for a

13

15:07:50 13 pathologist?

14

15:07:50 14

A.

Yes.

15

15:07:51 15

Q.

Okay.

16

15:07:52 16

A.

But it doesn't mean that that was the reason

17

15:07:54 17 they were inadequate.

18

15:08:00 18

19

15:08:03 19 still the reason then?

20

15:08:08 20 non-diagnostic --

21

15:08:09 21

22

15:08:11 22 the major issues were communication.

23

15:08:13 23

24

15:08:16 24 what did you find Dr. Lieu's conclusion was there?

25

15:08:18 25

Q.

A.

Q.

A.

It was the radiologist.

Well, does it mean that the pathologist was Who's responsible for

Well, in this case I would say yes, because

What about the radiologists' competence,

That there could be some improved technique.

RaglandA

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

Document 277-2

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Page 107 of 245 325

1

17:12:05

1 today, Dr. Jadwin's removal would have been justified

2

17:12:09

2 by his conduct and communication failures, correct?

3

17:12:12

3

A.

Yes.

4

17:12:12

4

Q.

Okay.

5

17:12:15

5 the vote to demote him?

6

17:12:16

6

A.

It wasn't necessary.

7

17:12:17

7

Q.

In other words, his physical absence was

8

17:12:22

8 enough, it was a sufficient reason to demote him?

9

17:12:24

9

A.

Yes.

10

17:12:24 10

Q.

There was no need for -- in your mind, there

11

17:12:27 11 was no need to discuss his misconduct or many

12

17:12:31 12 communication failures of which you witnessed so

13

17:12:34 13 many?

14

17:12:34 14

A.

No.

15

17:12:34 15

Q.

Didn't -- you didn't feel the need to

16

17:12:37 16 mention a single one?

17

17:12:38 17

18

17:12:39 18

19

17:12:41 19 Counsel.

20

17:12:41 20

21

17:12:43 21 and regs and the bylaws said he could be removed

22

17:12:44 22 without reason, there was no reason to discuss any of

23

17:12:50 23 it.

24

17:12:51 24 pathology department to maintain its ongoing

25

17:12:54 25 certification.

A.

Well, why didn't you raise them at

No. MR. WASSER:

THE WITNESS:

We've been over this a lot,

As I stated earlier, the rules

We needed leadership in the laboratory in the

You can't do that if he's not there.

RaglandA

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

1

Document 277-2

Filed 12/01/2008

Page 108 of 245 332

1

Q.

Okay.

A.

It's basically a verbal confirmation -- or a

2

17:32:11

2

3

17:32:15

3 written confirmation of what I've been telling you.

4

17:32:17

4

5

17:32:22

5 accusing you of being an impaired physician?

6

17:32:25

6

A.

He did not accuse me.

7

17:32:26

7

Q.

I'm sorry?

8

17:32:29

8

A.

He didn't accuse me to my face.

9

17:32:30

9

Q.

Okay.

Q.

Now, you -- do you recall Dr. Jadwin ever

But -- well, did you -- you are aware

10

17:32:33 10 that he said or he thought you were an impaired

11

17:32:37 11 physician, right?

12

17:32:38 12

13

17:32:40 13 event, yes.

14

17:32:41 14

15

17:32:45 15 Dr. Jadwin something about being an impaired

16

17:32:49 16 physician during the October 17 reprimand meeting?

17

17:32:55 17

A.

I probably had some kind of remark.

18

17:32:57 18

Q.

Right.

19

17:33:00 19 Dr. Jadwin had suggested you were an impaired

20

17:33:03 20 physician?

21

17:33:04 21

A.

Oh, yes.

22

17:33:04 22

Q.

Do you recall how you learned about this --

23

17:33:07 23

A.

You know, no, I don't.

24

17:33:09 24 mentioned it to me, I think it was months -- but I

25

17:33:12 25 can't really testify to the time -- after it

A.

Q.

I was made aware of that sometime after the

All right.

Now, do you recall stating to

So you knew by then at least that

RaglandA

Somebody had

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

Document 277-2

Filed 12/01/2008

Page 109 of 245 333

1

17:33:14

1 occurred, and then it was probably a year or so later

2

17:33:16

2 that somebody told me why because I didn't -- I said,

3

17:33:20

3 "Where did that come from?"

4

17:33:22

4 the process, I didn't know that he had made the

5

17:33:24

5 accusation, I didn't know at the time of that meeting

6

17:33:28

6 that he had called the licensing board, I didn't know

7

17:33:31

7 any of that.

8

17:33:32

8

Q.

Well, how --

9

17:33:34

9

A.

Then when they told me, I just didn't really

But I wasn't aware of

10

17:33:36 10 care because I just said "Whatever."

11

17:33:37 11

12

17:33:40 12 right?

13

17:33:40 13

A.

Not officially.

14

17:33:41 14

Q.

Unofficially they did tell you all --

15

17:33:43 15

A.

Somebody made mention of it or something,

16

17:33:45 16 like they thought I had already known about it, but I

17

17:33:48 17 didn't.

18

17:33:48 18

Q.

Do you recall who this was?

19

17:33:50 19

A.

No.

20

17:33:51 20

Q.

No?

21

17:33:52 21

22

17:33:55 22 learned all the details?

23

17:33:55 23

A.

Not really, no.

24

17:33:56 24

Q.

No?

25

17:33:57 25

Q.

Okay.

So they did eventually tell you,

Do you recall when this was that you finally

You didn't think it was important, right?

RaglandA

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

Document 277-2

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Page 110 of 245 334

1

17:33:59

1

A.

That's, you know, out of my hands.

2

17:34:01

2

Q.

So being -- Dr. Jadwin suspecting you were

3

17:34:05

3 an impaired physician didn't bother you that much,

4

17:34:08

4 did it?

5

17:34:09

5

6

17:34:11

6 well, you know, I found it insulting.

7

17:34:14

7 bothered me.

8

17:34:18

8 bothered me.

9

17:34:19

9

A.

Q.

Well, it was so far after the fact that -So, yeah, it

Okay.

Yeah, it bothered me, of course it

Well, aside from this October 17

10

17:34:21 10 reprimand meeting, did you ever talk to Dr. Jadwin

11

17:34:24 11 about why he had suggested you were an impaired

12

17:34:28 12 physician?

13

17:34:29 13

A.

I never spoke to him even then why.

14

17:34:31 14

Q.

But you thought it was inappropriate always,

15

17:34:33 15 right?

16

17:34:34 16

A.

I -- you know, that's his decision.

17

17:34:37 17

Q.

I'm asking for your opinion.

18

17:34:40 18

19

17:34:41 19 BY MR. WASSER:

20

17:34:41 20

21

17:34:42 21 Dr. Jadwin to call you or to suggest you were an

22

17:34:45 22 impaired physician, right?

23

17:34:47 23

24

17:34:50 24 thought that was inappropriate.

25

17:34:52 25

MR. WASSER:

Q.

A.

Q.

What's your question?

You thought it was un- -- inappropriate for

Based on an E-mail, a spelling, yes, I

Did -- how did you know which E-mail

RaglandA

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

A.

Document 277-2

Filed 12/01/2008

Page 111 of 245 361

1

18:01:29

1

2

18:01:32

2 patient.

3

18:01:32

3

4

18:01:38

4 were being collected properly by the radiologist --

5

18:01:42

5

A.

Okay.

6

18:01:42

6

Q.

-- what's the difference?

7

18:01:43

7

8

18:01:44

8 impacted when the FNAs aren't collected properly by

9

18:01:48

9 radiologists and they have to do multiple passes

Q.

Because I needed the X-ray to evaluate the

If Dr. Jadwin needed to ensure that the FNAs

Patient -- you don't think patients are

10

18:01:50 10 unnecessarily?

11

18:01:51 11

A.

Yes, I do.

12

18:01:51 12

Q.

That is a patient care issue, isn't it?

13

18:01:54 13

A.

Yes, it is.

14

18:01:54 14

Q.

Did you recognize that before?

15

18:01:56 15

A.

Of course.

16

18:01:57 16

Q.

You understood that the FNA issue was a

17

18:01:59 17 patient care issue from the beginning, right?

18

18:02:01 18

A.

It was a patient care issue, yes.

19

18:02:03 19

Q.

It wasn't just a communication problem, was

20

18:02:05 20 it?

21

18:02:05 21

A.

The patient care issue -- well -- okay, no,

22

18:02:12 22 it was both.

23

18:02:13 23

24

18:02:17 24 was both, right?

25

18:02:18 25

Q.

A.

Just like your dispute with the radiologist

Yes.

RaglandA

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

Document 277-2

382 of 245 Page 112

Filed 12/01/2008

STATE OF CALIFORNIA ss. COUNTY OF KERN

I,

Sandra L. Edmonson,

a Certified Shorthand

Reporter in the State of California, Certificate No.

holding

7704, do hereby certify that

ALAN SCOTT RAGLAND, M.D.,

the witness named in the

foregoing deposition, was by me duly sworn; that said deposition was taken Friday, August 22,

2008,

at the

time and place set forth on the first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotype and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I

further certify that I am neither counsel for

nor in any way related to any party to said action, nor in any way interested in the result or outcome thereof. Dated this 8th day of September,

2008,

at

Bakersfield, California.

Sandra L.

Edmonson,

WOOD & RANDALL (800) 322-4595

CSR No.

7704

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

Document 277-2

Filed 12/01/2008

Page 113 of 245

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

EXHIBIT 10

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

15

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13

VIDEOTAPED DEPOSITION

14

OF

15

RAYMOND ALBERT WATSON

16 17

Monday, August 25, 2008

18 19

Bakersfield, California

20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

WatsonR

Page 114 of 245 1

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

Document 277-2

Filed 12/01/2008

Page 115 of 245 7

1

14:03:51

1 my question.

It's very unnatural to do that, but

2

14:03:55

2 it's for the sake of the reporter.

3

14:03:56

3 record one person speaking at a time.

4

14:03:58

4

5

14:04:00

5 requires -- has the same force and effect as an oath

6

14:04:03

6 administered in a court of law before a judge and/or

7

14:04:06

7 a jury.

8

14:04:09

8 truth and the whole truth.

9

14:04:11

9

A.

Yes.

10

14:04:11 10

Q.

If at any time you don't understand a

11

14:04:15 11 question that's being asked, please ask me to restate

12

14:04:17 12 or rephrase the question, and I'll be happy to do so.

13

14:04:20 13 If you answer the question, it will be presumed that

14

14:04:22 14 you understood the question; so please be sure you

15

14:04:25 15 understand before you answer.

16

14:04:27 16

A.

Yes.

17

14:04:27 17

Q.

Okay.

18

14:04:31 18 estimates.

19

14:04:35 19 speculation.

20

14:04:37 20 you could estimate it's 12 feet or so.

21

14:04:41 21 how many cats I have at home, you'd have to say I

22

14:04:43 22 don't know; it would be a guess.

23

14:04:45 23

A.

Yes.

24

14:04:45 24

Q.

Okay.

25

14:04:49 25 why today's deposition cannot proceed?

She can only

The oath you've been administered

You are under the same duty to tell the Do you understand?

Do you understand?

We are entitled to your best

If I ask -- but not your guesses or If I ask you the length of this table, If I ask you

Do you understand?

Is there any reason you're aware of

WatsonR

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

Q.

Document 277-2

Okay.

Filed 12/01/2008

Page 116 of 245 10

1

14:09:24

1

2

14:09:24

2 a vote by the JCC on July 10 of 2006 at which it was

3

14:09:24

3 considered and approved to remove Dr. Jadwin from

4

14:09:24

4 chair of pathology at KMC.

5

14:09:24

5

6

14:09:24

6

A.

Yes.

7

14:09:24

7

Q.

Okay.

8

14:09:24

8

A.

He was the chairman of the pathology

9

14:09:24

9 department.

Okay.

I'll represent to you that there was

Do you know who Dr. David Jadwin is?

Well, who was he?

10

14:09:24 10

Q.

Did you have a lot of interaction with him?

11

14:09:24 11

A.

None whatsoever.

12

14:09:24 12

Q.

You never met him personally?

13

14:09:24 13

A.

Not that I know of.

14

14:09:24 14

Q.

And do you recall why -- did you vote at

15

14:09:24 15 this JCC meeting where Dr. Jadwin was being removed

16

14:09:24 16 from chair?

17

14:09:24 17

A.

Yes.

18

14:09:24 18

Q.

Okay.

19

14:09:24 19 going to refer it to as the removal meeting.

20

14:09:24 20 okay with you?

21

14:09:24 21

A.

That's fine.

22

14:09:24 22

Q.

Okay.

23

For the sake of brevity, I'm just Is that

So at the removal meeting do you

23 recall why you voted to remove Dr. Jadwin from chair

24

14:09:24 24 of pathology?

25

14:09:24 25

MR. WASSER:

Now, as to Supervisor

WatsonR

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

Document 277-2

Filed 12/01/2008

Page 117 of 245 11

1

14:09:24

1 Patrick -- let me just mention-- Supervisor Watson,

2

14:09:24

2 as a member of the board of supervisors, has a

3

14:09:24

3 privilege to not disclose the reasons for votes he's

4

14:09:24

4 cast as a member of the board of supervisors.

5

14:09:24

5 privilege is personal to Supervisor Watson, and he

6

14:09:24

6 may assert it or he may not depending upon his own

7

14:09:24

7 preference.

8

14:09:24

8

9

14:09:24

9 question.

THE WITNESS:

The

Would you restate the

10

14:09:24 10 BY MR. LEE:

11

14:09:24 11

12

14:09:24 12 voted to approve the removal of Dr. Jadwin from chair

13

14:09:24 13 at the removal meeting?

14

14:09:24 14

15

14:09:24 15 in attendance to his duties for an extended period of

16

14:09:24 16 time, and that I did not believe that a manager can

17

14:09:24 17 perform their functions unless they are present.

18

14:09:24 18

19

14:09:24 19 understood that Dr. Jadwin was not physically present

20

14:09:24 20 at the hospital for an extended period of time?

21

14:09:24 21

A.

That's correct.

22

14:09:24 22

Q.

And that was -- and your view was that a

23

14:09:24 23 manager cannot perform his duties as a manager unless

24

14:09:24 24 he is physically present at the hospital, correct?

25

14:09:24 25

Q.

A.

Q.

A.

Sure.

Do you recall the reasons why you

I was -- we were told that he had not been

Okay.

So just to be very clear, you

For at least a portion of the time to carry

WatsonR

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

Document 277-2

Filed 12/01/2008

Page 118 of 245 12

1

14:09:24

1 out their duties.

2

14:09:24

2

3

14:09:24

3 was not physically present at the hospital.

4

14:09:24

4 that told to you?

5

14:09:24

5

6

14:09:24

6 Excuse me.

7

14:09:24

7

8

14:09:24

8 Bryan at this time?

9

14:09:24

9

A.

Yes.

10

14:09:24 10

Q.

Okay.

11

14:09:24 11 physical presence at the hospital as one reason.

12

14:09:25 12 there any other reasons whatsoever for your vote to

13

14:09:27 13 remove him as chair?

14

14:09:29 14

A.

No.

15

14:09:29 15

Q.

No.

16

14:09:35 16 anybody about Dr. Jadwin's conduct or misconduct at

17

14:09:39 17 the hospital aside from being physically absent from

18

14:09:42 18 the hospital?

19

14:09:44 19

20

14:09:47 20 discussed at different times over a period of months

21

14:09:52 21 before that.

22

14:09:53 22

Q.

Dr. Jadwin's misconduct?

23

14:09:55 23

A.

Yes.

24

14:09:55 24

Q.

Okay.

25

14:09:58 25 Dr. Jadwin's misconduct was discussed?

Q.

A.

Q.

A.

Okay.

And how did you know that Dr. Jadwin How was

We were told by the chairman -- by the CEO.

Okay.

Just to be clear, the CEO was Peter

You've mentioned Dr. Jadwin's lack of Are

So at this meeting were you told by

At that meeting I don't recall.

It was

Can you recall those meetings where

WatsonR

Were these

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

Document 277-2

Filed 12/01/2008

Page 119 of 245 30

1

14:31:52

1 board.

2

14:31:53

2

3

14:32:07

3 final resolution of this discussion regarding

4

14:32:09

4 nonrenewal of Dr. Jadwin's contract?

5

14:32:13

5 decision, in fact, not to renew his contract then?

6

14:32:20

6

7

14:32:24

7 although I imagine it was.

8

14:32:27

8 would have supported that because I didn't feel that

9

14:32:30

9 he was doing his job.

Q.

A.

Are you aware that Dr. -- and what was the

Was there a

Q.

I don't recall a specific vote being taken,

Okay.

I can tell you that I

10

14:32:31 10

So you don't recall a specific vote,

11

14:32:39 11 but there was a decision not to renew his contract

12

14:32:42 12 then?

13

14:32:43 13

A.

Yes.

14

14:32:43 14

Q.

You can't recall who was there besides

15

14:32:45 15 yourself?

16

14:32:46 16

A.

No, I can't.

17

14:32:46 17

Q.

And you can't recall whether this was --

18

14:32:50 18 well, clearly this meeting at which his nonrenewal

19

14:32:54 19 was discussed, it must have been after he was placed

20

14:32:57 20 on paid administrative leave, right?

21

14:33:01 21

A.

I --

22

14:33:02 22

Q.

Don't know?

23

14:33:02 23

A.

I could not tell you a timeline at all.

24

14:33:04 24

Q.

Do you recall whether Dr. Jadwin was ever

25

14:33:06 25 placed -- that he was placed on paid administrative

WatsonR

Or was it not?

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

Document 277-2

Filed 12/01/2008

Page 120 of 245 39

1

14:42:54

1 the economic impact of the paid administrative leave

2

14:42:58

2 on Dr. Jadwin then?

3

14:43:03

3

A.

I don't recall that.

4

14:43:03

4

Q.

Okay.

5

14:43:08

5 recollection, he wasn't present at this closed

6

14:43:11

6 session of the JCC regarding his placement on paid

7

14:43:15

7 administrative leave, correct?

8

14:43:18

8

9

14:43:21

9 Dr. Jadwin.

A.

Q.

And again, Dr. Jadwin, to your

I -- I don't believe I've ever met

10

14:43:22 10

And are you aware of whether or not

11

14:43:24 11 Dr. Jadwin was notified that this JCC closed session

12

14:43:29 12 meeting was going to occur regarding placement of him

13

14:43:32 13 on paid administrative leave?

14

14:43:33 14

15

14:43:35 15 testimony.

16

14:43:35 16

THE WITNESS:

17

14:43:35 17

MR. WASSER:

18

14:43:37 18

MR. LEE:

19

14:43:38 19

MR. WASSER:

20

14:43:39 20 statement that administrative leave was discussed at

21

14:43:42 21 the closed session, Counsel.

22

14:43:43 22

23

14:43:44 23 BY MR. LEE:

24

14:43:46 24

Q.

You want me to repeat --

25

14:43:47 25

A.

I'm not aware of that.

MR. WASSER:

MR. LEE:

That misstates the witness'

I don't know. There's no --

I'll ask -There's no foundation for your

I'm asking.

WatsonR

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

Q.

Document 277-2

Filed 12/01/2008

Page 121 of 245 110

1

16:32:24

1

2

16:32:27

2 recall what the reason was for placing Dr. Jadwin on

3

16:32:29

3 paid administrative leave?

4

16:32:33

4 with his leaves, I assume, right?

5

16:32:34

5

6

16:32:37

6 that aspect of -- of it.

7

16:32:43

7 the reason was.

8

16:32:44

8

Q.

Right.

9

16:32:45

9

A.

I assume there's a memo in there somewhere,

A.

Well, then how do you explain -- do you

That had nothing to do

You know, I -- I'm really not familiar with I -- I don't recall what

10

16:32:48 10 but I can't recall what the -- what the reasons for

11

16:32:51 11 that were.

12

16:32:52 12

13

16:32:58 13 do you recall Dr. Jadwin's physical absence being a

14

16:33:02 14 reason for his nonrenewal of his contract?

15

16:33:05 15

16

16:33:06 16 fact that I think by then he was -- probably was

17

16:33:10 17 suing us.

18

16:33:12 18 contractual relationship with somebody who's suing

19

16:33:16 19 you.

20

16:33:17 20

21

16:33:19 21 time of his removal or actually at the time of his --

22

16:33:23 22 no, he wasn't.

23

16:33:26 23

24

16:33:29 24 a contractual relationship with someone who's suing

25

16:33:34 25 you, right?

Q.

A.

Okay.

Q.

What about the nonrenewal?

Well, it could be that.

I mean,

It could be the

So why would you want to establish a

Okay.

Well, he was also suing you at the

He wasn't.

Okay.

But I mean, you say why would you establish

WatsonR

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

Document 277-2

Filed 12/01/2008

Page 122 of 245 111

1

16:33:34

1

A.

Right.

2

16:33:35

2

Q.

Was that -- does that mean -- are you just

3

16:33:35

3 speculating now, just guessing, or was that a

4

16:33:38

4 consideration for his nonrenewal?

5

16:33:39

5

A.

Well, I remember it being discussed.

6

16:33:41

6

Q.

Do you recall who was at that discussion?

7

16:33:45

7

A.

It would have been in one of the joint

8

16:33:47

8 conference -- one or more of the joint conference

9

16:33:50

9 committee meetings along with all the other

10

16:33:52 10 discussions about him.

11

16:33:53 11

12

16:33:56 12 of those meetings?

13

16:33:57 13

14

16:34:00 14 what meetings.

I don't know the answer to that.

15

16:34:02 15

But you recall it being discussed at

16

16:34:05 16 the JCC meetings?

17

16:34:06 17

A.

Yes.

18

16:34:06 18

Q.

Okay.

19

16:34:09 19 were discussed for the nonrenewal besides

20

16:34:14 20 Dr. Jadwin's lawsuit?

21

16:34:15 21

22

16:34:20 22 wasn't available for work.

23

16:34:26 23 available to put in the hours for a full-time

24

16:34:30 24 position.

25

16:34:30 25

Q.

A.

Do you recall if David Culberson was in any

Q.

You know, I couldn't tell you who was in

A.

Okay.

Q.

And do you recall what other reasons

The -- the -- that and the fact that he just He wasn't -- he wasn't

Well, he was working full time from October

WatsonR

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

Q.

Document 277-2

Filed 12/01/2008

Page 123 of 245 113

1

16:35:30

1

2

16:35:34

2 administrative leave, quote/unquote, pending

3

16:35:36

3 personnel issues, which he was never told.

4

16:35:40

4 by the time his contract was expiring, he was not

5

16:35:43

5 renewed.

6

16:35:47

6 during the time Dr. Jadwin's been placed on paid

7

16:35:50

7 administrative leave.

8

16:35:52

8 work, it was because he was ordered to stay home.

9

16:35:57

9

A.

And then he was -- he was placed on paid

And then

So getting back to the nonrenewal, this is

So if he was not available to

Yeah, I wouldn't--

10

16:35:57 10

MR. WASSER:

11

16:35:59 11 Mr. Watson.

12

16:36:01 12

13

16:36:03 13 question actually.

14

16:36:03 14 BY MR. LEE:

15

16:36:04 15

16

16:36:05 16 for the nonrenewal one of the reasons was that

17

16:36:08 17 Dr. Jadwin wasn't available for work; is that correct

18

16:36:11 18 or --

19

16:36:12 19

20

16:36:16 20 been on medical leave, family leave, and had

21

16:36:24 21 requested even more leave, and that for that reason

22

16:36:33 22 and the fact that he was suing us, that we decided

23

16:36:40 23 not to renew his contract.

24

16:36:42 24

25

16:36:46 25 joint conference committee meeting, correct?

He's making statements.

MR. LEE:

Q.

A.

Q.

There's no question,

The question is -- no, there is a

So the question is:

You've mentioned that

My understanding was that he had -- he had

Okay.

And when you say "we," this is a

WatsonR

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

A.

Document 277-2

Filed 12/01/2008

Page 124 of 245 114

1

16:36:48

1

2

16:36:51

2 session of the board of supervisors.

3

16:36:53

3

Q.

As well as a closed session of the JCC?

4

16:37:00

4

A.

Yes.

5

16:37:06

5

MR. LEE:

6

16:37:13

6

(Plaintiff's counsel conferred.)

7

16:37:44

7 BY MR. LEE:

8

16:37:44

8

9

16:37:48

9 involved in the decision to put Dr. Jadwin on paid

Q.

And it -- it probably came up at a closed

Okay.

Anything else?

So you do recall Mr. Culberson being

10

16:37:50 10 administrative leave?

11

16:37:56 11

12

16:38:00 12 remember the timeline.

13

16:38:01 13

Q.

Okay.

14

16:38:06 14

A.

But if he were involved in that, he

15

16:38:09 15 apparently was experiencing the same problems that

16

16:38:12 16 Peter Bryan was, and so, you know, I don't know any

17

16:38:18 17 more than that.

18

16:38:18 18

19

16:38:21 19 meeting whether there was any discussion of the

20

16:38:24 20 medical staff bylaws and the fact that under those

21

16:38:28 21 bylaws a department chair, specifically Dr. Jadwin,

22

16:38:32 22 could be removed with or without cause upon

23

16:38:34 23 recommendation of the CEO and a majority vote of the

24

16:38:39 24 JCC?

25

16:38:41 25

A.

Q.

He was the interim CEO from --

I know who he was.

Okay.

I -- again, I don't

And do you recall at the removal

Do you recall any discussion like that? A.

Yes.

WatsonR

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

Document 277-2

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

Page 125123 of 245

ss. 3 4

I,

5

Sandra L.

Edmonson, a Certified Shorthand

6

Reporter in the State of California, holding Certificate

7

No.

8

the witness named in the foregoing deposition, was by me

9

duly sworn; that said deposition was taken Monday,

7704, do hereby certify that RAYMOND ALBERT WATSON,

10

August 25,

11

first page hereof.

12

2008, at the time and place set forth on the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I further certify that I am neither counsel for

18

nor in any way related to any party to said action,

19

in any way interested in the result or outcome thereof.

20 21

Dated this 8th day of September,

2008,

at

Bakersfield, California.

22 23 Sandra L. Edmonson, CSR No. 24 25

WOOD & RANDALL (800) 322-4595

7704

nor

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

Document 277-2

Filed 12/01/2008

Page 126 of 245

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

EXHIBIT 11

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

16

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

DAVID KIRKER CULBERSON

17

Thursday, August 21, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

CulbersonD

Page 127 of 245 1

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

Q.

Document 277-2

Filed 12/01/2008

Page 128 of 245 10

1

09:18:05

1

2

09:18:06

2 Camden Group or since when?

3

09:18:08

3

4

09:18:11

4 November of 2007.

5

09:18:12

5

6

09:18:24

6 when you were assigned to Kern Medical Center?

7

09:18:27

7

A.

That's correct.

8

09:18:27

8

Q.

I see.

9

09:18:30

9

A.

Q.

How long have you been employed by the

I've been employed with the Camden since

You weren't employed with the Camden Group

Okay.

Well, you worked at Kern Medical

10

09:18:33 10 Center at some point in, I believe, 2006; is that

11

09:18:36 11 correct?

12

09:18:36 12

A.

Yes, it is correct.

13

09:18:37 13

Q.

Okay.

14

09:18:39 14 Kern Medical Center?

15

09:18:41 15

16

09:18:47 16 15th, 2007.

17

09:18:48 17

18

09:18:56 18 Medical Center starting January of '07?

19

09:18:59 19

A.

Not to my knowledge.

20

09:19:00 20

Q.

So to your knowledge, Paul Hensler came in

21

09:19:03 21 as the CEO around May of 2007?

22

09:19:05 22

A.

Yes, that's correct.

23

09:19:12 23

Q.

How is it that you came -- you were -- what

24

09:19:25 24 was your position at Kern Medical Center?

25

09:19:28 25 interim CEO?

A.

Q.

What were your dates of employment at

Approximately August 25th, 2006, through May

I'm sorry.

Was Paul Hensler not at Kern

CulbersonD

Was it

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

Document 277-2

Filed 12/01/2008

Page 129 of 245 11

1

09:19:30

1

A.

Yes, it was, interim CEO, that's correct.

2

09:19:33

2

Q.

How was it that you became the interim CEO

3

09:19:36

3 of Kern Medical Center?

4

09:19:38

4

5

09:19:42

5 independent contractor with the Camden Group, and a

6

09:19:44

6 contract was let between the County of Kern on behalf

7

09:19:47

7 of Kern Medical Center and the Camden Group for

8

09:19:52

8 interim chief executive officer leadership as well as

9

09:19:57

9 strategic planning activities.

A.

Q.

Through the Camden Group I was a consultant,

10

09:19:59 10

11

09:20:05 11 contract then with Camden Group separately?

12

09:20:07 12

A.

Yes, that's correct.

13

09:20:08 13

Q.

Okay.

14

09:20:11 14 weren't being paid directly through -- by the County

15

09:20:14 15 of Kern, you were being paid through the Camden

16

09:20:16 16 Group; is that correct?

17

09:20:17 17

A.

Yes, that's correct.

18

09:20:17 18

Q.

Okay.

19

09:20:24 19 with Camden Group, was it exclusively and solely for

20

09:20:28 20 the purpose of your assignment to Kern Medical Center

21

09:20:31 21 or was it a broader agreement to your knowledge or

22

09:20:33 22 understanding?

23

09:20:35 23

24

09:20:37 24 there.

25

09:20:38 25 at Kern Medical Center, yes.

A.

Okay.

So in -- and I assume you had a

So when you were being paid, you

And this contract you entered into

I can't recall the full scope of the details The principal assignment would have been here

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 130 of 245 42

1

09:54:11

1

Q.

'-6 you mean, right?

2

09:54:12

2

A.

2006, thank you.

3

09:54:14

3 handwritten note sometime thereafter and then

4

09:54:17

4 shredded it or destroyed it shortly when I felt it

5

09:54:20

5 was appropriate to -- I no longer needed that piece

6

09:54:23

6 of paper for my notes or for whatever purpose I was

7

09:54:26

7 working on.

8

09:54:26

8

9

09:54:29

9 you shredded these notes regarding your investigation

Q.

Okay.

And I would have made some

I'm asking you to estimate the dates

10

09:54:31 10 of Dr. Mansour's behavior as complained about to

11

09:54:35 11 Dr. Perez.

12

09:54:37 12

A.

September 2006 through May 2007.

13

09:54:39 13

Q.

Were you aware that plaintiff had requested

14

09:54:45 14 that evidence in this case, including with respect to

15

09:54:49 15 other comparatories, not be destroyed, that not --

16

09:54:52 16 they not be dis-spoliated, were you ever advised of

17

09:54:55 17 that?

18

09:54:57 18

A.

No, I was not.

19

19

Q.

Okay.

20

09:54:58 20

A.

I'm sorry.

21

09:55:00 21 Dr. Jadwin matter versus --

22

09:55:01 22

Q.

Yes.

23

09:55:01 23

A.

Yes, I was not aware of that.

24

09:55:05 24

Q.

Okay.

25

09:55:06 25 destroy any evidence in connection with Dr. Jadwin's

Please estimate those dates.

Did there -In this case rel- -- the

No one ever instructed you not to

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 131 of 245 43

1

09:55:10

1 lawsuit?

2

09:55:14

2

A.

That's correct.

3

09:55:14

3

Q.

Okay.

4

09:55:20

4

A.

Yes, I am.

5

09:55:20

5

Q.

Had you been so instructed, you would not

6

09:55:23

6 have destroyed any notes -- well, did you -- were

7

09:55:25

7 there any notes regarding Dr. Jadwin's case that

8

09:55:28

8 you're aware of?

9

09:55:29

9

A.

You're sure about that, right?

That I took, yes, I'm sure I would have

10

09:55:31 10 taken some handwritten notes during discussions, yes.

11

09:55:34 11

Q.

Okay.

12

09:55:37 12

A.

Yes, that's correct.

13

09:55:37 13

Q.

And you don't have those notes anymore,

14

09:55:40 14 right?

15

09:55:40 15

A.

That's correct.

16

09:55:41 16

Q.

They've been destroyed, right?

17

09:55:43 17

A.

Yes.

18

09:55:43 18

Q.

Okay.

19

09:55:47 19 you recall when they were destroyed and how,

20

09:55:50 20 estimating?

21

09:55:50 21

22

09:55:53 22 sometime after September 2007, probably prior to

23

09:56:00 23 January of -- I'm sorry, September 2006 --

24

09:56:02 24

Q.

Six?

25

09:56:03 25

A.

-- prior to January of 2007.

A.

Regarding Dr. Jadwin, correct?

These notes regarding Dr. Jadwin, can

My notes with Dr. Jadwin would have been

CulbersonD

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

Q.

Document 277-2

Okay.

Filed 12/01/2008

Page 132 of 245 44

1

09:56:05

1

Let's just -- let's talk about these

2

09:56:11

2 handwritten notes on Dr. Jadwin.

3

09:56:13

3 these notes?

4

09:56:16

4

A.

Yes, they were.

5

09:56:17

5

Q.

Okay.

6

09:56:20

6

A.

There were a number of staff core physicians

7

09:56:27

7 and staff that would have expressed concerns about

8

09:56:31

8 activities within the department, including

9

09:56:34

9 Dr. Jadwin.

When did you take

Were they -- were they at meetings?

Describe the meetings, please.

10

09:56:35 10

Q.

You mean the pathology department?

11

09:56:37 11

A.

That's correct.

12

09:56:40 12 have brought the leadership team in to talk about it,

13

09:56:46 13 and I would have taken notes just for my process.

14

09:56:51 14 would have taken notes just so I could follow the

15

09:56:53 15 discussion.

16

09:56:53 16

Q.

Okay.

17

09:56:56 17

A.

I did.

18

09:56:56 18

Q.

Okay.

19

09:56:57 19

A.

Yeah, thank you.

20

09:56:58 20

Q.

I'm not trying to give you a hard time, but

21

09:57:00 21 I need to --

22

09:57:01 22

A.

No, I understand.

23

09:57:01 23

Q.

Yeah.

24

09:57:03 24 was your custom to take notes at every such meeting?

25

09:57:07 25

A.

And at that time I would

I

Would have or did?

Okay.

So when you took these notes,

Yes.

CulbersonD

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

Q.

Document 277-2

Page 133 of 245 45

1

09:57:08

1

2

09:57:11

2 regarding Dr. Jadwin and the pathology department to

3

09:57:16

3 your estimation?

4

09:57:21

4

A.

No more than ten.

5

09:57:23

5

Q.

So it stands to reason there should have

6

09:57:27

6 been around ten sets -- well, ten discreet items of

7

09:57:31

7 handwritten notes regarding each of these meetings,

8

09:57:34

8 correct, that you took?

9

09:57:35

9

A.

Yes.

10

09:57:35 10

Q.

Okay.

11

09:57:40 11 these notes were ever produced to anybody, given to

12

09:57:42 12 anybody by you?

13

09:57:44 13

A.

They were not given to anybody.

14

09:57:45 14

Q.

Okay.

15

09:57:48 15 these notes?

16

09:57:51 16 office?

17

09:57:53 17 briefcase?

18

09:57:56 18 in your office or anywhere?

19

09:57:58 19

20

09:58:01 20 them up or crumple them up and throw them in the

21

09:58:05 21 trash can at the end of the meeting.

22

09:58:06 22

Q.

Why would you do that?

23

09:58:08 23

A.

Because I didn't need to refer to the notes

24

09:58:10 24 at all.

25

09:58:10 25

A.

Q.

Okay.

Filed 12/01/2008

How many meetings did you attend

And do you recall whether any of

So -- I mean, where did you keep Did you keep them in a binder in your

Did you carry them around with you in your Where did you typically leave these notes

Frequently I --- I did shred -- I did rip

Uh-huh.

CulbersonD

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

A.

Document 277-2

Filed 12/01/2008

Page 134 of 245 46

1

09:58:11

1

I -- I used my notes to refresh my memories

2

09:58:17

2 during discussion.

3

09:58:18

3

Q.

Uh-huh.

4

09:58:18

4

A.

Found as an interim CEO it's very important

5

09:58:22

5 to get the characters and the activities down as

6

09:58:25

6 quickly as possible, and so I would take notes to

7

09:58:29

7 follow the actors and the actions during the

8

09:58:32

8 discussions we're having.

9

09:58:35

9 the processes, who the players are, what the issues

Once I think I understand

10

09:58:38 10 are, I find that I no longer need the notes, and I'd

11

09:58:42 11 crumple it up and throw it away at that time.

12

09:58:44 12

13

09:58:46 13 destroy and shred all of your notes immediately at

14

09:58:49 14 the end of each meeting in which you were taking

15

09:58:50 15 those notes?

16

09:58:51 16

A.

No, that's not correct.

17

09:58:53 17

Q.

That's correct?

18

09:58:53 18

A.

That's correct.

19

19

Q.

Okay.

20

09:58:56 20

A.

That's -- I'm sorry, that's not correct.

21

09:58:57 21

Q.

Okay.

22

09:58:59 22 sometimes did it then, right?

23

09:59:01 23

A.

Yes.

24

09:59:01 24

Q.

Okay.

25

09:59:03 25 the number of times you would shred these notes

Q.

Oh, so you -- actually your practice was to

Well, then, you said that you

So can you estimate percentage-wise

CulbersonD

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

Document 277-2

Filed 12/01/2008

1

09:59:06

1 immediately after the meeting?

2

09:59:06

2

A.

Specific to Dr. Jadwin --

3

Q.

Yes.

3

Page 135 of 245 47

4

09:59:08

4

A.

-- or the lab department?

5

09:59:09

5

Q.

We're talking specific to Dr. Jadwin.

6

09:59:12

6

A.

No, I cannot estimate that.

7

09:59:13

7

Q.

Okay.

8

09:59:16

8 half or less than half?

9

09:59:17

9

A.

No, I could not.

10

09:59:18 10

Q.

Okay.

11

09:59:22 11 that survived the shredding at the end of a meeting

12

09:59:25 12 regarding Dr. Jadwin.

13

09:59:26 13

14

09:59:30 14 Counsel.

15

09:59:32 15

16

09:59:35 16 disposed of.

17

09:59:35 17 BY MR. LEE:

18

09:59:36 18

19

09:59:39 19 crumpled up and disposed of after the meetings.

20

09:59:41 20

21

09:59:42 21

22

09:59:44 22 pathology, Dr. Jadwin," I believe, and I would have

23

09:59:47 23 put them there.

24

09:59:48 24

25

09:59:50 25 the lab --

You can't even say if it's more than

Okay.

MR. WASSER:

He says he crumpled them up,

He didn't talk about shredding. MR. LEE:

Q.

Let's talk about the notes

I'm sorry, crumpled it up and

Let's talk about the notes that weren't

What did you do with those notes? A.

Q.

In this case I had a file for "lab

I'm sorry.

What was the name of the file,

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 136 of 245 61

1

10:15:53

1

When you spoke to Dr. Harris, what was that

2

10:15:55

2 discussion about?

3

10:15:58

3

4

10:16:01

4 medical staff and Dr. Harris' perception of what

5

10:16:07

5 occurred that would have resulted in Dr. Jadwin's

6

10:16:10

6 removal as department division chair of pathology.

7

10:16:13

7

8

10:16:15

8 the removal of Dr. Jadwin from chair of pathology

9

10:16:20

9 then informally?

A.

Q.

What did you discuss with him?

I asked for some background relative to the

Okay.

So you were investigating what led to

10

10:16:21 10

A.

Yes.

11

10:16:21 11

Q.

Okay.

12

10:16:24 12 Dr. Harris?

13

10:16:24 13

A.

No.

14

10:16:25 14

Q.

Did you take notes?

15

10:16:26 15

A.

Yes.

16

10:16:26 16

Q.

Did you -- did you crumple those notes or

17

10:16:28 17 dispose of them after a meeting with Dr. Harris?

18

10:16:30 18

A.

Yes.

19

10:16:31 19

Q.

Okay.

20

10:16:33 20

A.

I understood the nature of what I -- I

21

10:16:35 21 understood the nature of what had occurred.

22

10:16:38 22 Dr. Jadwin, new to me, write it down so I remember.

23

10:16:42 23 Matters -- I don't recall specifically what they

24

10:16:44 24 were, asked the date of the contract, date of the

25

10:16:47 25 issues, matter's over, crumple it up, throw it away,

Did you take a written statement from

Why did you do that?

CulbersonD

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

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Page 137 of 245 62

1

10:16:50

1 no need to retain that.

2

10:16:52

2

3

10:16:54

3 be helpful at all to have a written documentation of

4

10:16:57

4 what you and Dr. Harris discussed?

5

10:17:00

5

A.

That's correct.

6

10:17:00

6

Q.

You didn't consider it evidence in this

7

10:17:01

7 case, right?

8

10:17:02

8

A.

That's correct.

9

10:17:02

9

Q.

Okay.

Q.

Okay.

You didn't think it would -- it would

Were you advised by anybody that that

10

10:17:05 10 was evidence in this case?

11

10:17:11 11

12

10:17:14 12 initially -- I was identified that I -- my meeting

13

10:17:19 13 with Dr. Harris?

14

10:17:20 14

15

10:17:22 15 Dr. Harris.

16

10:17:23 16

17

10:17:25 17 that that was evidence in this case.

18

10:17:27 18

19

10:17:30 19 Dr. Harris tell you?

20

10:17:32 20 perception?

21

10:17:33 21

22

10:17:35 22 removed from the department chairperson for a number

23

10:17:39 23 of issues relative to clinical, as well as behavioral

24

10:17:43 24 management activities, occurring at the hospital

25

10:17:47 25 sometime prior to me coming into Kern Medical Center.

A.

Q.

A.

Q.

A.

What was?

The piece of paper when I

The notes you took during your meeting with

No, I would not have.

That's fine.

Okay.

No one notified me

Let's -- so what did

What was his story, his

Dr. Harris told me that Dr. Jadwin had been

CulbersonD

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

Q.

Document 277-2

Filed 12/01/2008

Page 138 of 245 63

1

10:17:50

1

2

10:17:57

2 activities or conduct were?

3

10:18:06

3

A.

At that meeting, no, I cannot recall.

4

10:18:07

4

Q.

You can't recall one way or another?

5

10:18:09

5

A.

At that very initial meeting, I cannot

6

10:18:11

6 recall what the allegations were at that point.

7

10:18:14

7

8

10:18:17

8 today, correct?

9

10:18:18

9

Q.

A.

He -- he didn't specify when any of these

You mean you can't recall sitting here

I cannot recall sitting here -- sitting here

10

10:18:21 10 today, I cannot recall what the specifics would have

11

10:18:23 11 been briefed of me at that very first meeting, that's

12

10:18:27 12 correct.

13

10:18:27 13

14

10:18:29 14 the notes which you disposed of after the meeting?

15

10:18:33 15

A.

They might have, yes.

16

10:18:34 16

Q.

Yes, that's correct?

17

10:18:37 17

A.

They might -- yes.

18

10:18:37 18

Q.

Yes?

19

10:18:38 19

A.

Yes.

20

10:18:38 20

Q.

Okay.

21

10:18:42 21 did you speak about with him, same thing?

22

10:18:46 22

A.

Different matter.

23

10:18:47 23

Q.

Dif- -- okay.

24

10:18:49 24 with Dr. Dutt?

25

10:18:50 25

Q.

A.

Would the specifics have been contained in

Now, let's talk about Dr. Dutt.

What

Well, what did you talk about

Dr. Dutt relayed to me substantial concern

CulbersonD

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

Q.

Document 277-2

Filed 12/01/2008

Page 139 of 245 73

1

10:27:36

1

2

10:27:42

2 issue?

3

10:27:43

3

4

10:27:49

4 and also the way the second opinions were being

5

10:27:51

5 requested or not followed up on.

6

10:27:52

6

7

10:27:56

7 commenting on the operation of the pathology

8

10:27:58

8 department?

9

10:28:00

9

A.

Q.

A.

Dr. Jadwin's diagnoses then, was that the

Yes, that's correct.

And also the way --

How would Dr. Ragland have a basis for

He's not a pathologist?

That's correct.

Dr. Ragland is -- at the

10

10:28:04 10 time was chief of staff, and as such he represents

11

10:28:07 11 the entire medical staff and has the duty to go out

12

10:28:12 12 and receive input from everybody in the department --

13

10:28:16 13 everybody in the hospital -- all the physicians in

14

10:28:18 14 the hospital about the quality of medical care that's

15

10:28:20 15 being delivered.

16

10:28:21 16

17

10:28:24 17 was doing with respect to Dr. Jadwin?

18

10:28:27 18

A.

Yes.

19

10:28:27 19

Q.

Do you recall when Dr. Ragland was doing

20

10:28:29 20 this, speaking to various members of the medical

21

10:28:31 21 staff regarding Dr. Jadwin's diagnoses, the way

22

10:28:34 22 second opinions were not being sent out, et cetera?

23

10:28:36 23

24

10:28:41 24 of meeting with physicians.

25

10:28:42 25

Q.

A.

Q.

To your knowledge, was that what Dr. Ragland

No, I don't recall Dr. Ragland's sequencing

Okay.

You just know that they were

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 140 of 245 98

1

11:11:18

1

A.

I believe Mr. O'Connor and myself.

2

11:11:20

2

Q.

No one else?

3

11:11:21

3

A.

I don't recall anybody else, no.

4

11:11:22

4

Q.

Okay.

5

11:11:26

5

A.

The general lab operations relative to the

6

11:11:30

6 pathology staff and several of the lab employees was

7

11:11:36

7 extremely disruptive, chaotic and unstable.

8

11:11:39

8

9

11:11:46

9 specifically attributing this to Dr. Jadwin?

Q.

What did Mr. O'Connor tell you?

Due to Dr. Jadwin, right?

Was he

10

11:11:49 10

A.

No, I don't believe he did, no.

11

11:11:51 11

Q.

So he was just giving you a general report

12

11:11:54 12 on the status of the pathology department?

13

11:11:58 13

14

11:11:59 14 the employees and the pathology department and

15

11:11:59 15 several of the lab employees.

16

11:12:01 16

17

11:12:03 17 one more time?

18

11:12:06 18 department operation?

19

11:12:07 19

20

11:12:09 20 relative to the lab and pathology department.

21

11:12:12 21

Q.

And what were his findings then?

22

11:12:14 22

A.

That there -- the department was extremely

23

11:12:17 23 chaotic, disruptive, potentially resulting in

24

11:12:23 24 resignation of many of the -- or several of the staff

25

11:12:28 25 if the situation were not resolved in the immediate

A.

Q.

A.

Yes, that's correct.

Okay.

I'm sorry, sir.

The status relative to

Can you repeat that

What did he report regarding the path

He reported to the concerns expressed

CulbersonD

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

Document 277-2

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Page 141 of 245 99

1

11:12:33

1 future.

2

11:12:33

2

3

11:12:35

3 crisis, essentially?

4

11:12:37

4

5

11:12:41

5 expressed by non-physician staff, that's correct.

6

11:12:43

6

7

11:12:46

7 have anything to report regarding the physicians,

8

11:12:49

8 just --

9

11:12:49

9

Q.

A.

Q.

A.

So his report was that the department was in

That there was substantial concerns being

Oh, okay.

So the physicians -- he didn't

I don't recall anything specific to the

10

11:12:51 10 physicians.

11

11:12:52 11

12

11:12:56 12 to you, G-a-l-l-e-g-o-s?

13

11:12:59 13

A.

Yes.

14

11:12:59 14

Q.

Okay.

15

11:13:02 15 complaining to Mr. O'Connor?

16

11:13:06 16

17

11:13:08 17 to Mr. O'Connor.

18

11:13:12 18 employee or a pathology department employee.

19

11:13:14 19

Q.

Did you ever meet Vangie?

20

11:13:16 20

A.

I think I did, yes.

21

11:13:17 21

Q.

Okay.

22

11:13:20 22

A.

Generally I try to tour the hospital

23

11:13:23 23 regularly, and I believe I met Vangie.

24

11:13:27 24 those just kind of --

25

11:13:29 25

Q.

A.

Q.

Does the name Vangie Gallegos mean anything

Was she one of the people that was

I don't recall specifically Vangie talking I do recall Vangie as a lab

What was that in the context of?

How do you do?

CulbersonD

That's one of

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

Document 277-2

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Page 142 of 245 102

1

11:15:53

1 the path department issues that Mr. O'Connor was

2

11:15:57

2 raising?

3

11:16:01

3

4

11:16:02

4 took.

5

11:16:05

5 that the lab management may have taken at that time.

6

11:16:08

6

7

11:16:13

7 action, but you just don't recall what it was or

8

11:16:16

8 whether you did?

9

11:16:17

9

A.

That's correct.

10

11:16:17 10

Q.

Okay.

11

11:16:19 11 meeting with Steve O'Connor?

12

11:16:20 12

A.

I don't recall.

13

11:16:21 13

Q.

It was your custom to take notes at your

14

11:16:25 14 meetings with people, right?

15

11:16:26 15

A.

Yes, that's correct.

16

11:16:26 16

Q.

Okay.

17

11:16:30 17 recollection, but do you have any reason to believe

18

11:16:32 18 you did not take notes at this meeting with Steve

19

11:16:34 19 O'Connor?

20

11:16:35 20

21

11:16:36 21 to believe I did not, right.

22

11:16:38 22

23

11:16:39 23

24

11:16:43 24 O'Connor to formalize his findings in writing in a

25

11:16:47 25 report or an E-mail?

A.

I don't recall any specific actions that I I don't recall -- nor do I recall any action

Q.

A.

Q.

Okay.

So in other words, you may have taken

Did you take notes during your

So you don't have a specific

That's correct, I have -- I have no reason

Okay.

That's fine.

Okay.

So -- and you did not ask Steve

CulbersonD

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

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1

12:09:55

1

A.

I'm aware of that meeting, yes.

2

12:09:56

2

Q.

Okay.

3

12:09:59

3 discussion.

4

12:09:59

4

A.

That's fine, yes.

5

12:10:00

5

Q.

Okay.

6

12:10:03

6 discussion, the time it occurred, did you know

7

12:10:06

7 whether or not the allegations against Dr. Jadwin as

8

12:10:08

8 expressed by numerous people, Dr. Ragland, Harris,

9

12:10:14

9 Dutt, Ms. Barnes, Mr. O'Connor, Ms. Raison,

I'm going to call that buyout

Now, did you know as of the buyout

10

12:10:18 10 Dr. Naderi, Dr. Kercher, numerous people, did you --

11

12:10:23 11 did you know whether these allegations were actually

12

12:10:25 12 proven?

13

12:10:30 13

14

12:10:33 14 investigated upon.

15

12:10:34 15

16

12:10:36 16 there, of Dr. Jadwin prior to the buyout --

17

12:10:39 17 between -- between December 7 of 2006, and the buyout

18

12:10:45 18 discussion, there was an investigation of Dr. Jadwin,

19

12:10:48 19 wasn't there?

20

12:10:49 20

A.

Yes, that's correct.

21

12:10:49 21

Q.

Okay.

22

12:10:52 22 investigation conclude?

23

12:10:53 23

A.

I can't recall the specifics.

24

12:10:54 24

Q.

You don't recall which allegations were

25

12:10:57 25 proven and which weren't?

A.

Q.

Some were, some were not.

Some had not been

So there was an investigation, then, wasn't

And what did the -- what did the

CulbersonD

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

A.

Document 277-2

Filed 12/01/2008

Page 144 of 245 158

1

12:11:00

1

2

12:11:03

2 extensive letter, but I don't recall which one, that

3

12:11:06

3 had a number of matters.

4

12:11:09

4 which ones were found which way, quite honestly.

5

12:11:15

5

Q.

You said a letter from Dr. Dutt?

6

12:11:17

6

A.

Yes, that's -- I believe that's where -- the

7

12:11:19

7 letter I'm referring to, yes.

8

12:11:20

8

9

12:11:22

9 committee by any chance?

Q.

A.

I remember there was a lot -- rather

I don't recall specifically

Was this a letter to the peer-review

10

12:11:23 10

11

12:11:26 11 recipient of that letter was.

12

12:11:27 12

13

12:11:34 13 pathologic diagnoses?

14

12:11:36 14

A.

Yes, that's correct.

15

12:11:36 15

Q.

And did this letter also list disruptive

16

12:11:40 16 behavior by Dr. Jadwin?

17

12:11:42 17

18

12:11:43 18 contained in the letter.

19

12:11:44 19

20

12:11:46 20 discussing hostile work environment created by

21

12:11:50 21 Dr. Jadwin?

22

12:11:50 22

A.

I don't recall that, no.

23

12:11:51 23

Q.

Do you recall whether this letter discussed

24

12:11:53 24 retaliation by Dr. Jadwin against several core

25

12:11:57 25 physicians?

Q.

A.

Q.

I can't recall where the -- who the intended

And it listed problems in Dr. Jadwin's

I can't recall specifically what was

Did it recall -- do you recall this letter

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 145 of 245 159

1

12:11:59

1

A.

I can't recall the specifics, no.

2

12:11:59

2

Q.

Okay.

3

12:12:00

3

A.

That specifically.

4

12:12:01

4

Q.

Did -- do you recall whether Dr. Dutt's

5

12:12:09

5 letter included any mention of computer sabotage or

6

12:12:12

6 any other kind of sabotage by Dr. Jadwin?

7

12:12:15

7

8

12:12:18

8 component in the letter, that's correct.

9

12:12:20

9

A.

Q.

I cannot recall the contents of that

Okay.

Who conducted this investigation into

10

12:12:23 10 the allegations of Dr. Jadwin between December 7,

11

12:12:27 11 2006, and the buyout discussion?

12

12:12:29 12

13

12:12:31 13 investigating a large portion of the matters.

14

12:12:33 14

Q.

Who else?

15

12:12:34 15

A.

I -- I would not -- I'd just have to

16

12:12:38 16 speculate beyond that.

17

12:12:39 17

18

12:12:41 18

19

12:12:45 19 Dr. Dutt conduct this investigation into the

20

12:12:48 20 allegations?

21

12:12:50 21

22

12:12:51 22 he contacted two or three experts in the field -- and

23

12:12:57 23 I don't recall where those experts were, whether it

24

12:12:59 24 was USC, UCLA, UCSF, I don't recall the specifics.

25

12:13:04 25 But he did make some outreach to other fairly renown

A.

Q.

I believe Dr. Dutt was involved in

Okay.

Don't do that.

And how did -- to your knowledge, how did

A.

Did he speak to --

Personal investigation, and I also believe

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 146 of 245 160

1

12:13:09

1 pathologists about proper policies, procedures and

2

12:13:13

2 interpretations.

3

12:13:14

3

4

12:13:18

4 yourself?

5

12:13:19

5

A.

No, I did not.

6

12:13:19

6

Q.

Okay.

7

12:13:23

7 Did Dr. Dutt create a summary report or did he just

8

12:13:26

8 orally report?

9

12:13:27

9

Q.

A.

Did you actually see these reports then

So how did you learn of the results?

I don't recall whether it was written or

10

12:13:28 10 oral, but I certainly would have come back and

11

12:13:30 11 reported something about his findings, yes.

12

12:13:33 12

13

12:13:37 13 you meet with Dr. Dutt to hear his findings?

14

12:13:40 14

A.

Yes.

15

12:13:40 15

Q.

Did you take notes at these meetings?

16

12:13:42 16

A.

Not that I recall, no.

17

12:13:43 17

Q.

Why is it that you take notes at certain

18

12:13:45 18 meetings but not at others?

19

12:13:48 19

20

12:13:50 20 that meeting.

21

12:13:53 21 frequently to take notes.

22

12:13:55 22 specifically taking notes at that meeting.

23

12:13:57 23

24

12:13:59 24 not take notes at this meeting with Dr. Dutt where he

25

12:14:03 25 gave you the results of his investigation?

Q.

A.

Q.

Did you take notes at any of these -- did

Why not this meeting?

I don't recall specifically taking notes at It's -- my general behavior is But I do not recall

Do you have any reason to believe you did

CulbersonD

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

A.

Document 277-2

Filed 12/01/2008

1

12:14:05

1

2

12:14:07

2 notes.

3

12:14:07

3

4

12:14:13

4 these notes, is it in your own handwriting?

5

12:14:16

5

A.

Yes, it is.

6

12:14:16

6

Q.

Okay.

7

12:14:19

7

A.

Very rarely.

8

12:14:20

8

Q.

Okay.

9

12:14:24

9 your notes on?

Q.

Page 147 of 245 161

I have no reason to believe I did not take

Okay.

When you take notes -- when you take

Do you ever type these notes up?

And what kind of paper did you take Was it like college-ruled line paper?

10

12:14:28 10 You want to hold up an example of it like that?

11

12:14:31 11

A.

A yellow --

12

12:14:31 12

Q.

Pad?

13

12:14:32 13

A.

-- pad.

14

12:14:33 14

Q.

Just hold it up for the camera.

15

15

A.

Sure.

16

12:14:36 16

Q.

Show -- I mean, you can just hold it up.

17

12:14:38 17

A.

It says your location on here.

18

18

Q.

Okay.

19

12:14:42 19

A.

Similar to that, yes, correct.

20

12:14:42 20

Q.

So that's the kind of paper you took your

21

12:14:46 21 notes on, correct?

22

12:14:48 22

A.

Yes.

23

12:14:48 23

Q.

Okay.

24

12:14:49 24

25

12:14:50 25 way?

So this --

Thank you.

Is that your handwriting on there, by the

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 148 of 245 162

1

12:14:50

1

A.

No, it's not.

2

12:14:51

2

Q.

It's not?

3

12:14:53

3

4

12:14:56

4 orally the findings of his investigation of

5

12:14:59

5 Dr. Jadwin; is that correct?

6

12:15:00

6

A.

Yes, that's correct.

7

12:15:00

7

Q.

How many times did he meet with you?

8

12:15:02

8

A.

I can't recall that.

9

12:15:02

9

Q.

More than one?

10

12:15:08 10

A.

I'd have to speculate more than one, I'm

11

12:15:10 11 sorry.

12

12:15:10 12

13

12:15:12 13

14

12:15:18 14 Dr. Dutt occurred?

15

12:15:19 15

A.

No, I don't.

16

12:15:19 16

Q.

Okay.

17

12:15:22 17 administrative leave, right?

18

12:15:25 18

A.

I'd have to speculate on that.

19

12:15:27 19

Q.

You don't know which way?

20

12:15:30 20

A.

No, I don't know.

21

12:15:31 21

Q.

Okay.

22

12:15:34 22 the time of the paid administrative leave then?

23

12:15:38 23 don't know?

24

12:15:39 24

A.

It could have been, but I don't know.

25

12:15:41 25

Q.

Okay, then, that's fine.

Okay.

So Dr. Dutt, he met with you to report

Q.

Don't do that. And do you recall when this meeting with

Was it -- it was after the paid Or was it?

So it could have been right around

CulbersonD

And to your

You

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

Document 277-2

Filed 12/01/2008

Page 149 of 245 163

1

12:15:43

1 knowledge Dr. Jadwin did not know that Dr. Dutt was

2

12:15:46

2 conducting an investigation into allegations against

3

12:15:48

3 him?

4

12:15:51

4

A.

I don't know one way or the other, no.

5

12:15:53

5

Q.

Okay.

6

12:15:58

6 out, right?

7

12:16:00

7

A.

Sorry?

8

12:16:00

8

Q.

You didn't -- you didn't think to find out

9

12:16:02

9 whether Dr. Jadwin was aware of the allegations

You didn't check to know -- to find

10

12:16:04 10 against him that were being made?

11

12:16:07 11

A.

I don't recall checking on that, no.

12

12:16:15 12

Q.

Did it concern you that Dr. Dutt might be

13

12:16:19 13 biased against Dr. Jadwin because Dr. Jadwin was the

14

12:16:22 14 previous chair and now Dr. Dutt was the interim

15

12:16:25 15 chair?

16

12:16:26 16

A.

Yes.

17

12:16:26 17

Q.

Okay.

18

12:16:33 18 about potential bias on Dr. Dutt's part?

19

12:16:37 19 do anything about it?

20

12:16:38 20

21

12:16:45 21 department chair and asked for his objective opinion

22

12:16:48 22 to the matter.

A.

So how did you deal with this concern Or did you

Well, I -- I certainly turned to Dr. Dutt as

23

23

Q.

Uh-huh.

24

12:16:48 24

A.

Also weighed credence to the fact that

25

12:16:52 25 outside consultants were being brought in to evaluate

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 150 of 245 164

1

12:16:55

1 practices and -- up to and including results of tests

2

12:16:59

2 as well.

3

12:16:59

3

4

12:17:01

4 consulting reports, right?

5

12:17:03

5

A.

Not to my knowledge, no.

6

12:17:04

6

Q.

They were relayed to you through Dr. Dutt,

7

12:17:06

7 correct?

8

12:17:07

8

A.

Yes.

9

12:17:07

9

Q.

You're not a pathologist?

10

12:17:09 10

A.

That's correct.

11

12:17:10 11

Q.

You have no pathologic training?

12

12:17:12 12

A.

That's correct.

13

12:17:12 13

Q.

So when you looked at -- if you -- let's say

14

12:17:15 14 you even had a chance to look at these outside expert

15

12:17:18 15 reports, you would not have been able to discern

16

12:17:21 16 their meaning or significance, would you have?

17

12:17:24 17

A.

That's correct, I would not.

18

12:17:24 18

Q.

Because they're pathologic reports, right?

19

12:17:28 19

A.

Correct.

20

12:17:28 20

Q.

So in other words, you had to depend on

21

12:17:30 21 Dr. Dutt for his interpretation or summary of the

22

12:17:34 22 outside consulting reports, correct?

23

12:17:38 23

24

12:17:41 24 might be knowledgeable of the subject matter.

25

12:17:42 25

Q.

A.

Q.

Okay.

And you never saw these outside

Yes, and perhaps any other physician that

Who else would be knowledgeable about

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 151 of 245 165

1

12:17:44

1 pathology reports?

2

12:17:46

2

A.

Generally surgeons.

3

12:17:47

3

Q.

So who else did you speak to then?

4

12:17:51

4

A.

I don't recall speaking to anybody about the

5

12:17:53

5 results of -- of any outside investigation.

6

12:17:55

6

Q.

You spoke only to Dr. Dutt then, right?

7

12:17:58

7

A.

To my recollection, only Dr. Dutt, that's

8

12:18:01

8 correct.

9

12:18:01

9

Q.

Now, at the time of this meeting with

10

12:18:03 10 Dr. Dutt, we don't recall the date, but can we at

11

12:18:10 11 least establish that Dr. -- that this meeting with

12

12:18:12 12 Dr. Dutt occurred sometime in 2006, or can you even

13

12:18:16 13 say that?

14

12:18:17 14

A.

No, I can't even say that, no.

15

12:18:18 15

Q.

Okay.

16

12:18:21 16 tenure as interim CEO, right?

17

12:18:24 17

A.

Yes.

18

12:18:24 18

Q.

Okay.

19

12:18:27 19 May of 2007, correct?

20

12:18:28 20

A.

Yes.

21

12:18:28 21

Q.

So we don't know exactly when that was,

22

22 right?

Anyway, it was somewhere during your

Which was between August of '06 to

It wasn't towards the beginning, middle, or

23

12:18:31 23 end of your tenure?

24

12:18:31 24

A.

Right, I can't -- I can't state that, right.

25

12:18:33 25

Q.

That's fine.

At the time of this meeting

CulbersonD

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

Document 277-2

Filed 12/01/2008

Page 152 of 245 166

1

12:18:35

1 with Dr. Dutt where he was reporting the findings of

2

12:18:37

2 his investigation into the allegations about

3

12:18:43

3 Dr. Jadwin, did Dr. Jadwin -- do you know that

4

12:18:46

4 Dr. Dutt had reports of outside experts regarding

5

12:18:50

5 Dr. Jadwin's diagnoses?

6

12:18:55

6

7

12:18:59

7 outside opinions.

8

12:19:02

8 the specific findings were brought back, quite

9

12:19:05

9 honestly.

A.

You knew that for a fact?

Q.

I know that there were attempts made to add

10

12:19:06 10

11

12:19:09 11 did Dr. Dutt report to you about the findings of the

12

12:19:11 12 outside consultants as to Dr. Jadwin's competence, if

13

12:19:16 13 anything?

14

12:19:21 14

15

12:19:26 15 clear the outside consultant did not believe that the

16

12:19:31 16 way matters were handled was proper.

17

12:19:34 17

18

12:19:38 18 diagnoses or are we talking about policy,

19

12:19:41 19 administration, protocol within pathology?

20

12:19:45 20

A.

Actually, I believe there was both.

21

12:19:47 21

Q.

Both?

22

12:19:48 22

A.

Yes.

23

12:19:51 23 can't recall specifically what they were on, so --

24

12:19:54 24

25

12:19:57 25 Dr. Dutt hired a consultant to the pathology

A.

Q.

Q.

Okay.

I don't recall if anything else --

Do you recall whether Dr. -- so what

Did he tell you what the results were? Yes.

Okay.

There were several matters that it was

Are we talking about pathologic

But, again, I'm going to have to say I

You mean -- so you're not sure whether

CulbersonD

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

Document 277-2

Filed 12/01/2008

177 Page 153 of 245

STATE OF CALIFORNIA ss.

2

COUNTY OF KERN

3 4

I, Sandra L. Edmonson, a Certified Shorthand

5

6

Reporter in the State of California, holding Certificate

7

No.

8

the witness named in the foregoing deposition, was by me

9

duly sworn; that said deposition was taken Thursday,

7704, do hereby certify that DAVID KIRKER CULBERSON,

August 21,

2008,

at the time and place set forth on the

first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotype and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action,

nor

in any way interested in the result or outcome thereof. Dated this 4th day of September,

2008,

at

Bakersfield, California.

Sandra L.

Edmonson,

WOOD & RANDALL (800) 322-4595

CSR No.

7704

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

Document 277-2

Filed 12/01/2008

Page 154 of 245

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

EXHIBIT 12

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

17

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

Document 277-2

Filed 12/01/2008

1

1

UNITED STATES DISTRICT COURT

2

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

3

---------

4

4

DAVID F. JADWIN, D.O.,

Page 155 of 245 1

) Case No. 1:07-cv-00026-OWW-TAG )

5

5

Plaintiff,

) )

6

6

vs.

) )

7

7

COUNTY OF KERN; et al.

) )

8

8

Defendants.

)

_________________________) 9

9

10

10

11

11

12

12

13

13

OF

14

14

COUNTY OF KERN

15

15

16

16

PHILIP LEE DUTT. M.D.

17

17

Friday, August 29, 2008

18

18

Bakersfield, California

19

19

20

20

21

21

VIDEOTAPED DEPOSITION

THROUGH PERSON MOST KNOWLEDGEABLE,

Reported by:

Cindee L. LeFevre, CSR No. 7974

22 23

22

24 25

23

26 27

24

28 29

25

PMK DuttP1

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

1 2 3 4 5

09:28:38 09:28:41 09:28:42 09:28:47 09:28:48 County's

1 2 3 4 5

Q. A. Q. A. Q.

Document 277-2

Filed 12/01/2008

Page 156 of 245 10

Did you speak with Dr. Harris? I have not. Okay. Did you review any documents? No. Okay. Dr. Dutt, please tell us about the

6 7 8

09:28:56 6 notice to 09:29:01 7 regulatory

response to Gilbert Martinez -- Gilbert Martinez's

09:29:06

audit.

David Hill in November of 2006 regarding upcoming

9 8

10 11 12 13

09:29:09 9 that 09:29:15 10 09:29:19 11 conversation

A.

I'm not sure I am -- I'm not sure I was aware

Gilbert had given notice to David Hill. What I know is that I know I had the

14 15 16

09:29:26 12 to 09:29:40 13 the

with Irwin Harris in which Dr. Jadwin had made a comment

09:29:48 14

hospital to JCAHO, CNPS.

Gilbert Martinez, at least, that he was going to report

17 Not necessarily in that order.

18 19 20 21

09:30:00 15 with 09:30:02 16 09:30:06 17 that

Q.

Do you recall when you had this conversation

Dr. Harris? An estimate, please. A. It was either the Friday before Thanksgiving

22 23 24 25

09:30:09 18 before 09:30:15 19 09:30:18 20 Jadwin

year or the Monday after that weekend.

So the Monday

09:30:25 09:30:28 09:30:35 that 09:30:39 about 09:30:43

21 22 23

supposedly made this comment to Mr. Martinez? A. I don't know when he made that comment to Mr. Martinez. Let me supplement what I said earlier;

24

he may have also spoken to Dr. Harris.

25

that.

Thanksgiving. One of those two days, I believe. Q. And do you know or -- do you know when Dr.

26 27 28 29

PMK DuttP1

I am not sure

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

1

Document 277-2

Filed 12/01/2008

Page 157 of 245 13

09:33:39 Harris.

1

A.

By that time, I had already talked to Dr.

09:33:42 Dr. 09:33:50 09:33:55 had

2

Q.

I see.

3 4

Harris decide to do, if anything? A. I suggested that I could look for someone who

09:34:03

5

experience with CAP inspections to see if they would be

09:34:10

6

willing to give us a mock unannounced inspection.

09:34:15

7

Q.

Was that Stacy Garry?

09:34:18

8

A.

She agreed to do that.

09:34:20

9

Q.

G-a-r-r-y.

2 3 4 5

Okay.

And did you -- what did you and

6 7 8 9 10 11 12 13 14

09:34:23 10 Miss or 09:34:28 11 09:34:34 12 conversation

Okay.

And do you recall when you spoke to

was it Dr. Gary? A. Well, the -- I do, but when -- the

15 09:34:38 13

where she agreed to do that was on Christmas day.

16 17 18 19

09:34:48 14 CAP 09:34:52 15 09:34:55 16 she

Q.

And she agreed to do the mock, unannounced,

inspection? A. She did not want to use the word "CAP" because

20 09:34:59 17

was not acting as representative of CAP, but I wanted

09:35:03 18 inspection. 09:35:11 19 09:35:15 20 09:35:18 21 09:35:27 22 this?

someone who had experience to give us a tough

21 22 23 24 25 26

Q. Of the Pathology Department? A. And portions of the laboratory. Q. Okay. Okay. And Dr. -- I assume -- I am not going to assume anything. Did Dr. Harris then approve

27 09:35:32 23

A.

At what time?

09:35:35 24 09:35:38 25 whenever

Q. A.

At any time. Well, on the -- on either the Friday --

28 29

PMK DuttP1

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

1

Document 277-2

Filed 12/01/2008

Page 158 of 245 14

09:35:44 before

1

we had that first conversation, on either the Friday

09:35:47 thought 09:35:51 someone

2

Thanksgiving or the Monday before Thanksgiving, he

3

it was a good idea and gave approval if I could find

09:35:59

4

to agree to do that.

09:36:03 idea? 09:36:09 09:36:12 09:36:23 to

5

Q.

So Dr. Harris agreed with you it was a good

6 7 8

A. Q.

Yes. How much cost was -- never mind. Okay. And besides the retention of Dr. Garry

09:36:29 any, 09:36:34 09:36:41 09:36:42 09:36:43 09:36:46 09:36:51 09:36:54 to

9

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

10 11 12 13 14 15 16

do a mock, unannounced inspection, what other steps, if did you or Dr. Harris decide to do? A. I believe that was it. Q. That was it? A. That was the response that I am aware of. Q. Was there any discussion -- strike that. When you heard -- when you understood that Dr. Jadwin was intending to report KMC to the authorities,

20 09:36:59 17

your understanding, did that include the tissue bank

09:37:03 18

licensing, slash, skull flap issue?

21 22 09:37:07 19

A.

That came up later.

09:37:09 20

Q.

Okay.

09:37:13 believe, 09:37:18 09:37:21 09:37:22 09:37:28 was

A.

It was one of the items in a letter, I

23 How did the skull flap issue come up?

24 25 26 27 28 29

21 22 23 24 25

addressed Q. A. Q.

to David Culbertson. By Dr. Jadwin? Correct. And this was a letter dated after Dr. Jadwin

PMK DuttP1

Case 1:07-cv-00026-OWW-TAG DUTT, M. D. P LEE

Document 277-2

Filed 12/01/2008

Page 159 of 245 08-29-08 Page 95

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

SSe

3

4

I, Cindee L. LeFevre, a Certified Shorthand

5

Reporter in the State of California, holding certification

6

No. 7974, do hereby certify that PHILIP LEE DUTT, M.D.,

7

the witness named in the foregoing deposition,

8

was by me duly sworn; that said deposition was taken

9

Friday, August 29, 2008, at the time and place set forth

10 11

on the first page hereof. That upon the taking of the deposition,

the

12

words of the witness were written down by me in stenotypy

13

and thereafter transcribed by computer under my supervision;

14

that the foregoing is a true and correct transcript of the

15

testimony given by the witness.

16

I further certify that I am neither counsel for

17

nor in any way related to any party to said action, nor in

18

any way interested in the result or outcome thereof.

19

Dated this 15th day of September, 2008, at

20

Bakersfield, California.

21 22

,

23

~~~

24

Cindee L. LeFevre, CSR No. 7974

25

vs. RANDALL

(800)

COUNTY 322-4595

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

Document 277-2

Filed 12/01/2008

Page 160 of 245

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

EXHIBIT 13

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

18

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

Document 277-2

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) _____________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

SANDRA MARIE CHESTER

17

Thursday, August 28, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Erika Addis, CSR No. 11621

ChesterS

Page 161 of 245 1

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

Document 277-2

Filed 12/01/2008

Page 162 of 245 115

1

16:01:05

1

A.

Yes.

2

16:01:05

2

Q.

All right.

3

16:01:09

3 medical leave and processed at KMC?

4

16:01:11

4

A.

Correct.

5

16:01:12

5

Q.

I see.

6

16:01:15

6

7

16:01:17

7 leave, you're saying that they have to fill out this

8

16:01:21

8 particular form that is reflected in Exhibit 819?

9

16:01:26

9

A.

Yes.

10

16:01:26 10

Q.

All right.

11

16:01:31 11 the form of a letter requesting medical leave be

12

16:01:34 12 insufficient under KMC's policies and procedures?

13

16:01:39 13

14

16:01:48 14 acceptable.

15

16:01:48 15

Q.

Okay.

16

16:01:48 16

A.

At least it would have started the process.

17

16:01:48 17 Maybe we would have been formally notified that he

18

16:01:48 18 was needing a leave.

19

16:01:48 19

20

16:01:48 20

21

16:01:50 21 would a verbal request for leave be sufficient to put

22

16:01:54 22 KMC on notice that Dr. Jadwin required leave?

23

16:01:57 23

A.

No.

24

16:01:58 24

Q.

All right.

25

16:02:01 25 verbal request for medical leave be deemed

Before it could be designated as

Right.

And when you say a written request for

A.

Q.

So would a request in writing in

I personally would have deemed it as

Right. And under KMC's policies and procedures,

Under no circumstances would a

ChesterS

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

Document 277-2

Filed 12/01/2008

Page 163 of 245 120

1

16:08:31

1 if I understand your testimony correctly, the fact

2

16:08:35

2 that he did provide this notice to Mr. Bryan in the

3

16:08:40

3 normal course of matters you would have expected

4

16:08:43

4 Mr. Bryan to contact you --

5

16:08:43

5

A.

Yes.

6

16:08:44

6

Q.

-- and let you know that Dr. Jadwin had made

7

16:08:47

7 a good-faith effort to try and get an extension of

8

16:08:50

8 his leave the day after it expired.

9

16:08:52

9

A.

Absolutely.

10

16:08:54 10

Q.

You know, so this e-mail, under your normal

11

16:09:05 11 program in your tenure at KMC, would constitute

12

16:09:09 12 reasonable notice of the need for an extension of his

13

16:09:12 13 medical leave that should have generated an employee

14

16:09:15 14 information packet being sent to him at that time.

15

16:09:17 15 Is that correct?

16

16:09:17 16

A.

Absolutely.

17

16:09:18 17

Q.

Did Mr. Bryan ever inform you during your

18

16:09:22 18 conversations with him that he had received this

19

16:09:24 19 e-mail from Dr. Jadwin?

20

16:09:26 20

A.

No.

21

16:09:27 21

Q.

Did Mr. Bryan represent to you he had not

22

16:09:34 22 heard -- did Mr. Bryan represent to you that

23

16:09:39 23 Dr. Jadwin had failed to notify him of his need for

24

16:09:44 24 another -- for an extension of his medical leave at

25

16:09:48 25 the time that you wrote Exhibit 297?

ChesterS

Correct?

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

Document 277-2

Filed 12/01/2008

Page 164 of 245 167

1

1

STATE OF CALIFORNIA ) ) ss. COUNTY OF KERN )

2

2

3

3

4

4

5

5

6

6

in the State of California, holding Certificate

7

7

No. 11621, do hereby certify that SANDRA MARIE CHESTER,

8

8

the witness named in the foregoing deposition, was by me

9

9

duly sworn; that said deposition was taken Thursday,

10

10

August 28, 2008, at the time and place set forth on the

11

11

first page hereof.

12

12

13

13

words of the witness were written down by me in

14

14

stenotypy and thereafter transcribed by computer under

15

15

my supervision; that the foregoing is a true and correct

16

16

transcript of the testimony given by the witness.

17

17

18

18

nor in any way related to any party to said action, nor

19

19

in any way interested in the result or outcome thereof.

20

20

21

21

22

22

23

23

I, Erika Addis, a Certified Shorthand Reporter

That upon the taking of the deposition, the

I further certify that I am neither counsel for

Dated this 10th day of September, 2008, at Bakersfield, California.

_____ Erika Addis, CSR No. 11621

24 25

24 25 WOOD & RANDALL (800) 322-4595

ChesterS

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

Document 277-2

Filed 12/01/2008

Page 165 of 245

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

EXHIBIT 14

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

19

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

Document 277-2

Filed 12/01/2008

1

1

UNITED STATES DISTRICT COURT

2

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

3

---------

4

4

DAVID F. JADWIN, D.O.,

Page 166 of 245 1

) Case No. 1:07-cv-00026-OWW-TAG )

5

5

Plaintiff,

) )

6

6

vs.

) )

7

7

COUNTY OF KERN; et al.

) )

8

8

Defendants.

)

_________________________) 9

9

10

10

11

11

12

12

13

13

14

14

OF

15

15

COUNTY OF KERN

16

16

THROUGH PERSON MOST KNOWLEDGEABLE,

17

17

EUGENE KERCHER, M.D.

18

18

Thursday, September 4, 2008

19

19

Pasadena, California

20

20

21

21

VIDEOTAPED DEPOSITION

22 23

22

Reported by:

Cindee L. LeFevre, CSR No. 7974

24 25

23

26 27

24

28 29

25

PMK KercherE

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

1 2

Document 277-2

Filed 12/01/2008

Page 167 of 245 27

13:54:06 13:54:14 Digges'

1 2

Q. Okay. And this is Item 18 of the PMK notice. What do you understand about the nonrenewal of John

13:54:18

3

employment contract?

13:54:18

4

13:54:22

5

salary increase that was -- that was not acceptable, and

13:54:30

6

that's all I know about it.

13:54:32

7

Q.

Okay.

13:54:35 8 seem 13:54:38 9 13:54:43 10 opinion

A.

In other words, what he was asking for didn't

3 4 A.

My understanding was that he was asking for a

5 6 7 8 9 10 11

to match what he was actually doing and his job and the amount of hours he was spending. There was a strong

12 13:54:46 11

that his asking price was above and beyond what was

13:54:49 12

appropriate.

13:54:50 13 was 13:54:55 14 enough?

Q.

13 14 15 16

Okay.

So when you say it didn't match what he

doing, is that because his contribution wasn't good

17 13:55:00 15

I mean --

18 19 20 21 22

13:55:01 16 best 13:55:05 17 13:55:09 18 13:55:12 19 Department,

A.

No, I think he contributed in, you know, the

way he could. I dealt with him probably more than most physicians at Kern because we did have lots of abused children that come into the Emergency Medicine

23 13:55:17 20

and he was there, but my understanding is that the

13:55:22 -- in 13:55:28 13:55:33 13:55:36 was 13:55:39 whole

21

administration made the decision that the asking price

22 23 24

fact, I had called him a couple weeks ago to just -- on another issue -- and he related the same thing. He said can you believe they didn't think I

25

worth what I asked for.

24 25 26 27 28 29

So it sort of confirms the

PMK KercherE

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

1 2

Document 277-2

Filed 12/01/2008

Page 168 of 245 28

13:55:44 13:55:47 Digges

1 2

issue that -Q. Has he -- now, to your knowledge, is Dr.

13:55:51

3

retired?

3 4 5 6 7

13:55:52 4 capacity. 13:55:55 5 13:56:00 6 case-by-case

A.

No, I think he is still working in some

I do know that he does do forensic stuff. I don't know whether he does it on a locum tenens basis or

8 13:56:05

7

basis, but he still has expertise in that area.

13:56:09

8

Q.

Is he working then, do you know?

13:56:11 but 13:56:15 13:56:18 13:56:21 13:56:23 have to

9

A.

I -- I have never asked him that personally,

9 10 11 12 13 14 15

10 11 12 13

he is not Q. A. Q.

working for Kern Medical Center. Okay. Was he pretty close to retirement age? No. Okay. And do you recall what -- you don't

16 17 18 19 20 21

13:56:28 14 idea. 13:56:32 15 13:56:33 16 13:56:33 17 13:56:33 18 contract?

give me an exact amount, but can you give me a rough A. Q. A. Q.

I have no idea. No idea? No idea. Who made the decision not to renew his

A.

That was an administrative decision.

22 23 24 25

13:56:36 19 have 13:56:40 20 13:56:45 21 his

It may

been a Chief Medical Officer decision. I have no idea. Q. Okay. But before the decision not to renew

26 13:56:48 22

contract was made, was there a negotiation then with

13:56:52 23 13:56:54 24 I 13:56:58 25 him

Dr. Digges? A. And I can't really tell you much about that.

27 28 29

would suspect there was some attempt to negotiate with

PMK KercherE

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

1

Document 277-2

Filed 12/01/2008

Page 169 of 245 32

14:00:45 you

1

that don't belong to you to do an evaluation on you, and

14:00:51

2

don't interrupt their work process.

14:00:53 think 14:00:55 handed

3 4

about it and have an opportunity to -- but I mean, he

14:00:58 So 14:01:03 14:01:07 They

5

it to me.

6 7

to me -- to me, that was disruptive. Okay. It was disruptive. And they -- they invaded my Department.

14:01:11

8

invaded my residents' privacy.

14:01:13

9

14:01:18 mean, 14:01:24 14:01:25 14:01:26 tell

10

remember David specifically treating me in a sassy,

11 12 13

horrible way. Q. Okay. A. I mean, he was always nice to me, but I will

2 3 4 5

You find a time when they have got time to

6 7 8 9

He came up to me afterwards and thanked me.

10 11 Okay.

And that's -- but I -- I don't ever

12 13 14 15 16 17 18 19

14:01:28 14 when 14:01:32 15 have

you something.

I have oftentimes wondered what he said

14:01:37 16 with 14:01:40 17 kind

been in situations where he has been absolutely caustic

14:01:47 Kern 14:01:51 14:01:52 I 14:01:55 David, 14:01:59 many 14:02:06 14:02:08 14:02:09 David

18

of recipient of that behavior as others have been at

19 20

Medical Center. And I was an elected officer, I was a Chair.

21

heard about all the stuff.

22

stop it.

23 24 25

times I said that. Q. How did he respond? A. Well, you know, the usual way.

I wasn't around about me, but I never -- but -- and I

20 21 22

other folks, but, fortunately, somehow, I never was the

23 24 25 26 27 28 29

And I kept reminding him,

You are building enemies.

PMK KercherE

I don't know how

You know,

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

1

Document 277-2

Filed 12/01/2008

Page 170 of 245 33

14:02:13 the

1

was one that would listen, not necessarily respond all

14:02:17 the 14:02:23 14:02:28 ever

2

time, but he didn't yell at me or, you know, slam me in

3 4

face or anything like that. I thought he listened. Q. Well, so -- I mean, in your opinion, did you

14:02:30

5

witness Dr. Jadwin do something that would trigger the

14:02:36

6

Disruptive Physician Policy that's in place today?

14:02:39

7

A.

Oh, yeah.

14:02:40

8

Q.

Okay.

14:02:42

9

A.

That would have been one.

14:02:44 10

Q.

Okay.

14:02:45 11

A.

Then the other incident would have been his

2 3 4 5 6 7 8 9 So would it be this evaluation?

10 11 12 13 14:02:48 12

outright blasting of two elected medical officers in a

14:02:53 13

meeting.

14 15 14:02:54 14

Q.

Okay.

Tell me about that.

14:02:56 15

A.

And where he shared with the president of the

16 17 14:03:01 16

medical staff, who happened to be a woman, that --

18 14:03:05 17

Q.

Is this Dr. Abraham?

14:03:07 18 but 14:03:10 19 important,

A.

Yes.

19 20 21

And I don't know what the language was,

it was pretty demeaning in front of her, but more

22 14:03:14 20

just absolutely destroyed Dr. Ragland, who was president

14:03:21 21

elect.

23 24 25 26

14:03:22 22 happen? 14:03:25 23 president,

Actually, I was past -- no.

How did it

No, I think Jennifer was past president, I was

27 14:03:29 24

and Scott was president elect.

28 29

14:03:32 25 Ragland

But David just absolutely pulverized Scott

PMK KercherE

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

1

Document 277-2

Okay.

Filed 12/01/2008

Page 171 of 245 92

15:25:28 you

1

There was an e-mail exchange in which

15:25:31 stamped 15:25:37 sorry

2

were CC'd, and I am referring to Exhibit 263, Bates

3

507.

2 3 4

And it states -- this is a letter, an e-mail --

5 6 7 8

15:25:44 4 officers, 15:25:50 5 15:25:53 6 cordial

-- an e-mail from Peter Bryan to the medical staff

15:25:58

and not combative, and, goodness knows, a couple of you

stating thank you for participating in today's noontime meeting. I know it was really challenging to remain

9 7

10 11 12

15:26:01 8 restraint 15:26:05 9 And

could have really hit back.

Thank you for your

15:26:07 10

it goes on.

15:26:11 don't 15:26:14 15:26:18 15:26:22 15:26:23 15:26:26 dated

11

thank you for your efforts.

12 13 14 15 16

know if this ever got to you, but Dr. Ragland responded, that was one of the most distasteful events I have ever participated in. Do you recall what meeting this e-mail was referencing to? And I will tell you this e-mail is

and the professional manner in which you participated.

13 And Mr. Bryan concludes, anyway, thanks --

14 15 16 17 18 19 20

And then Mr. -- well, I

21 15:26:30 17

February 22.

15:26:31 18 and 15:26:32 19 15:26:35 20 Ragland

A.

22 23 24 25

I don't remember.

I don't recall that e-mail

I have no idea what that was referencing. Q. So you don't recall a meeting where Dr.

26 15:26:39 21

leaned back in his chair and said, here we are again,

15:26:42 22

Mr. Perfect?

15:26:43 23 15:26:47 24 15:26:51 25

A. I do not recall. Q. All right. Do you recall a meeting where Dr. Jadwin told Dr. Abraham that you are just a fat doctor?

27 28 29

PMK KercherE

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

1 2

Document 277-2

A. Q.

Filed 12/01/2008

Page 172 of 245 93

15:26:58 15:27:01 meeting

1 2

I don't recall that comment any time. Okay. Do you recall -- do you recall a

15:27:03 or 15:27:08 15:27:11 some of

3

where Dr. Jadwin told Dr. Raglan you are not competent

4 5

qualified to be a president of the medical staff? A. Now, this was not in February. These were

15:27:14

6

the comments that were made back at that meeting when we

15:27:18

7

presented him the letter.

15:27:19

8

Q.

October 17?

15:27:21 9 comments 15:27:23 10 15:27:26 11 and

A.

This was not in February.

3 4 5 6 7 8 9 10 11 12 13

These are some

that were made at the meeting in October. Q. Okay. Now, do you recall a meeting where you

14 15 16 17

15:27:30 12 head 15:27:35 13 15:27:37 14 Jadwin.

Dr. Harris apologized to Dr. Jadwin, and you shook his

15:27:40 15

You know, I used to punch him in the side, I used to

15:27:43 16

choke-hold him.

15:27:48 17

him.

and kind of slugged him in the arm? A. Huh? I have done that so many times to

18 19 I mean, I did a lot of crazy stuff with

20 21 15:27:48 18

I don't remember this particular --

22 15:27:50 19

Q.

But do you remember apologizing to Dr. Jadwin?

15:27:53 20

A.

I apologize all the time, sir.

23 I apologize to

24 25 26

15:27:55 21 Jadwin? 15:28:00 22 angry

everybody.

Sorry.

Have I been an asshole today,

15:28:04 23 apologize. 15:28:07 24 15:28:08 25 am

with me because I have done something wrong?

You seem to be upset.

I really apologize.

Are you

27 28 29

I

I do it all the time. Q. Okay. Well, I am just trying to recall -- I

PMK KercherE

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

1

Document 277-2

Filed 12/01/2008

Page 173 of 245 99

15:34:25 build

1

me, there's no better explanation for why he couldn't

15:34:31 why he 15:34:34 15:34:40 15:34:40 15:34:41 15:34:44 giving

2

friendships, why he couldn't become part of the team,

3 4 5 6 7

never felt a peace at KMC, why -- I mean, that's just my opinion. Q. Okay. A. And it could be totally wrong. I am not being dogmatic about it. I won't insist on it. I am just

15:34:48

8

you a very honest opinion.

15:34:49

9

2 3 4 5 6 7 8 9 10 Q.

I understand.

11 15:34:50 10

MR. WASSER:

As you know, this is a PMK, and I

12 13 14

15:34:52 11 hours 15:34:55 12 you

have given you enormous latitude in the last couple

15:34:58 13 know 15:35:00 14 the

need.

15:35:04 15 of 15:35:04 16 15:35:06 17 we're

PMK, don't forget this is the PMK, and we are way afield

15:35:11 18

going to wrap this up pretty soon anyway, but thanks.

15:35:13 19

BY MR. LEE:

15:35:16 20

Q.

because Dr. Kercher's testimony is, frankly, something

15 16 17

You didn't notice his deposition, and I didn't

why, and that's not my business, but if you want to do

18 19 20 21

that. MR. LEE:

I understand.

I understand.

And

22 23 24 Did you vote to remove Dr. Jadwin at the Joint

25 15:35:19 21

Conference Committee on July 10, 2006?

26 15:35:24 22

MR. WASSER:

As Chair?

27 15:35:27 23

A.

Was it 2006?

28 29

15:35:29 24 15:35:29 25 voted

BY MR. LEE: Q. July 10, 2006.

That's when Dr. Jadwin was

PMK KercherE

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

1 2 3 4 5 6 7 8 9 10 11

Document 277-2

Filed 12/01/2008

Page 174 of 245 100

15:35:33 1 15:35:35 2 15:35:36 3 15:35:41 4 15:35:44 5 15:35:51 6 15:35:52 7 15:35:55 8 15:35:55 9 15:35:56 10 15:35:57 11 have

to be removed as Chair of the Department by the JCC. A. Yes, I did. Q. You did. Okay. What was your basis for doing that? A. He wasn't around anymore. Q. Physical absence? A. Yeah, he wasn't doing his job. Q. Okay. A. He was gone. Q. Okay. A. I mean, he was not there anymore. I didn't

15:36:00 12 usage or 15:36:05 13 shoulder.

any Chair of Pathology to argue with me about blood

12 13 14

I had nobody to hit in the back or punch in the

15 15:36:08 14

I didn't have anybody around.

He's not there.

16 15:36:11 15

He's gone, and extended periods of gone.

17 15:36:16 16

Q.

Well, what periods of absence did you notice?

15:36:19 17

A.

He was just not there.

15:36:21 18

Q.

Okay.

15:36:23 19 that 15:36:31 20 the

A.

And I know, having been chair at that time,

18 19 Physically?

20 21 22

if I would have taken -- and I am just going on my own,

23 15:36:35 21

way I handle my business -- if I would taken as long of

15:36:40 22

extended leave of absence as Jadwin did, for whatever

15:36:43 23 is 15:36:47 24 which

reason, and I have no reason -- I have no idea what that

15:36:55 25 were

he didn't make clear to the boss, as to what his plans

24 25 26 27

-- I would have made it a little clearer to my boss,

28 29

PMK KercherE

CaseKERCHER, 1:07-cv-00026-OWW-TAG M.D.

Document 277-2

Filed 12/01/2008

Page 175 of 245 09-04-08 Page 113

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

ss.

3 4

5

I, Cindee L. LeFevre,

a

Certified Shorthand

6

Reporter in the State of California, holding certification

7

No. 7974, do hereby certify that EUGENE KERCHER, M.D.,

8

the witness named in the foregoing deposition,

9

was by me duly sworn; that said deposition was taken

10

Thursday, September 4, 2008, at the time and place set

11

forth on the first page hereof.

12

That upon the taking of the deposition, the

13

words of the witness were written down by me in stenotypy

14

and thereafter transcribed by computer under my supervision;

15

that the foregoing is a true and correct transcript of the

16

testimony given by the witness.

17

I further certify that I am neither counsel for

18

nor in any way related to any party to said action, nor in

19

any way interested in the result or outcome thereof.

20

Dated this 22nd day of September, 2008, at

21

Bakersfield, California.

22 23 24 25

vs. RANDALL

(800)

COUNTY 322-4595

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

Document 277-2

Filed 12/01/2008

Page 176 of 245

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

EXHIBIT 15

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

20

From: Law OFFice of Eugene Lee From: Law Office of Eugene Lee

To: 213-596-0487 To: 213-596-0487

Case 1:07-cv-00026-OWW-TAG (213) 992-3299 TELEPHONE

FACSIMILE

Filed 12/01/2008

Page 177 of 245

OFFICE OF LEE E N E

[email protected]

555 WEST F'IFTH STREET SUITE 3100 Los ANGELES, CAL.IFORNIA 9001 3-1 01 0

WWW.LOEL.COM WEBSITE

LAW

E UG (213) 50;16-0467

Document 277-2

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EMAIL

FAX To: Fax Number: 2135960487

From: Law Office of Eugene Lee Date: 03/29/2007

Pages: 3 (including cover page) Re: Jadwin/County of Kern et al.

Comments:

Karen: Transmitted herewith is a letter regarding Dr. Jadwin's visit to his office at KMC yesterday and KMC's duty to preserve evidence.

Please contact me if you have questions.

From: Law OFFice of Eugene Lee From: Law Office of Eugene Lee

To: 213-596-0487 To: 213-596-0487

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

(Z 1 3J gg 2-3 299

Document 277-2

LAW

TELEPHONE

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Filed 12/01/2008

OFFICE

EUGENE

OF

Page 178 of 245

[email protected] E-MAIL

LEE

(21:3) 596-0487

555 WEST FIFTH

STREET,

SUITE:31 00

WWW.LOEL.COM

FACSIMILE

LOS ANGELES, CALIFORNIA

9001 :::3-1010

WEBSITE

March 29, 2007 VIA fACSIMILE & US MAIL Ms. Karen S. Barnes Deputy County Counsel Kern Medical Center 1830 Flower Street Bakersfield, CA 93305-4197 Re:

100011.001

Dr. Jadwin's Access to His Personal Materials at KMC Jadwin I County of Kern (USDC EDCA No. 1:07-cv-00026-0WW/TAG)

Dear Ms. Barnes: following is brief summary of Dr. Jadwin's trip to KMC yesterday. Dr. Jadwin arrived at KMC at 2:00 p.m. on March 28,2006 and proceeded to go to the Medical Staff Office, as per your instructions. Steve, the KMC Head of Security escorted Dr. Jadwin from there to his office. The locks to Dr. Jadwin's office had apparently been changed during Dr. Jadwin's absence and Steve was therefore unable to open the door. Dr. Dutt then appeared and proceeded to unlock Dr. Jadwin's office. Upon entering his office Dr. Jadwin immediately noticed that his file cabinet and his desktop computer were both missing. Regarding the missing filing cabinet Dr. Dutt stated that he had "needed it". When Dr. Jadwin said that the cabinet had been filled with his personal items, including his personal scrubs, Dr. Dutt immediately denied it. Dr. Jadwin mentioned that a Bluetooth transmitter for his personal wireless keyboard and mouse had been attached to the back of the now-missing desktop computer. Dr. Dutt stated that it was "easy to make a mistake" when personal and county property were mixed. Regarding the missing computer, Dr. Dutt explained that the computer had been taken for use with the microscopy camera. Or. Jadwin mentioned to Or. Dutt that the computer had contained the personal and other information which Dr. Jadwin required for his Grand Rounds talk at UCLA next month. Dr. Dutt then interrogated Dr. Jadwin, asking where he was giving the talk, what the subject ofthe talk was going to be, what he needed from his computer, etc. Or. Dutt asserted that neither Dr. Jadwin nor I, his attorney, had been specific about what was needed. As such, he asserted it was "our fault" that the computer files were unavailable. Dr. Jadwin stressed that he was very short oftime and needed the materials to prepare for the lecture. When Dr. Jadwin explained that the items he sought were things that he needed to sort

To: 213-596-0487 To: 213-596-0487

From: Law OFFice of Eugene Lee From: Law Office of Eugene Lee

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

Document 277-2

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through on the computer to find, Dr. Dutt replied that this was something "for the attorneys to sort out". Dr. Jadwin then collected several personal items in a box and turned over several items to Dr. Dutt that were County property. Steve escorted Dr. Jadwin off the campus. At this point, Dr. Jadwin has very little time left to prepare for his grand rounds lecture. Dr. Jadwin has irreplaceable case studies and images that he has collected through the years on his computer. He requires immediate access to these and other personal files. As I had previously explained to you in my email of March 21: It will be very time consuming, not to mention uncomfortable, for Dr. Jadwin to have to inventory the personal items he needs access to. Dr. Jadwin has a lot of personal information - including personal items predating his employment at KMC - stored on his computer in the office.

Put another way, it does not seem reasonable to expect Dr. Jadwin to recall every single personal file contained on his computer and specify which exact files he requires, not to mention their filenames and folder locations on his computer. This is why I had requested Dr. Jadwin be permitted to personally access his office and retrieve the files from his computer. Apparently, you had agreed in your reply email of March 22, when you requested I provide you with Dr. Jadwin's preferred date and time. Given the shortness of time, unless you have a different proposal in mind, I would request that ALL of Dr. Jadwin's files contained on his computer be mailed to him on CDs by overnight express mail. On a closing note, I would like to remind you that KMC is under a strict legal obligation to preserve and prevent spoliation of electronic evidence relating to Dr. Jadwin's lawsuit against the County ofKem et al. This includes the emails and files contained on Dr. Jadwin's computer. I am very disturbed to hear that Dr. Dutt has expropriated Dr. Jadwin's computer for other use and that, apparently, no measures have been taken to backup or protect any of the data contained thereon. Your prompt response is appreciated.

cc:

David F. Jadwin, DO

2

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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

EXHIBIT 16

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

21

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Eugene D. Lee MaxEmail Send [[email protected]] Thursday, June 29, 2006 3:42 PM [email protected] MaxEmail Send Delivery Report Job 20183519-100011.001

From: Sent: To: Subject:

=============================================================================== Maxemail Send Job Confirmation For Job ID 20183519-100011.001 =============================================================================== Job Information Maxemail Job ID Number of Pages Recipient Count Total Charges Report Time Zone:

: 20183519-100011.001 : 0006 : 3 : $0.65 America/Los_Angeles (GMT-0700)

Recipient Delivery Summary Delivered Errorred Rec 0000 0001 0002

: 3 : 0

Fax Number 6618683809 8182499682 2135960487

Pgs* 0006 0006 0006

Duration 00:01:50 00:01:49 00:02:07

Calls 1 1 1

Status Delivered Delivered Delivered

Charge $0.20 $0.20 $0.25

================================================================================ Individual Call Detail ================================================================================ Call Detail for Item 00000 ID 3109078 Sent To 6618683809 0006 Pages Delivered Date/Time Duration Pgs* Status Charge 06/29-15:42 00:01:50 6 Transmission Successful $0.20 Call Detail for Item 00001 ID 3109079 Sent To 8182499682 0006 Pages Delivered Date/Time Duration Pgs* Status Charge 06/29-15:43 00:01:49 6 Transmission Successful $0.20 Call Detail for Item 00002 ID 3109080 Sent To 2135960487 0006 Pages Delivered Date/Time Duration Pgs* Status Charge 06/29-15:43 00:02:07 6 Transmission Successful $0.25 =============================================================================== End Of Report ===============================================================================

1

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

Pg I/ 6 06/29/06

3:38 pm

L A rDocument O F277-2 F I Filed C E12/01/2008 O F

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

E U G E N E

L E E

STE 2 7 0 0 4 4 5 SOUTH F I G U E R O A S T LOS ANGELES, CALIFORNIA 9 0 0 7 1 - 1 6 3 2

12 131 506-0407 FACSIMILE

[email protected]

Page 182 of 245 rm t'dA1 L W.LCIEL.ECIM WE~EITE

FAX To: Eugene Lee Fax Number: 21 35960487

Pages: 6 (including cover page) Re: Jadwin v Kern Medical Center et al. Comments: Please see the attached letters.

From: Law Office of Eugene Lee Date: 06/29/2006

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 277-2

Pg 2/ 6 06/29/06

Filed 12/01/2008

TELEPHONE

L A WOFFICE OF E U G E N E L E E

12 131 6 9 e . 0 4 0 7 FAUEIMILL

4 4 6 E O U T H FImULROA ET, E U I T L 2 7 0 0 LOU ANmLLLE. UALIFORNIA 9 0 0 7 1 . 1 - 3 2

( a 131 ~ m a - 0 4 8 a

3:38 pm

Page 183 of 245 [email protected] E-MAIL

WWW.LOLL.UOM WLEEITL

June 29,2006 VIA US MAIL. FAX & EMAIL Ms. Kasen S. Basnes Deputy County Counsel Office of the County Counsel, County of Kern Administrative Center 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Re:

Preservation i no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.

Dear Ms. Barnes: I am writing to inform you that my office has been retained by Dr. David F. Jadwin to represent him in the above-captioned pending matter. We are currently preparing to bring suit against the County of Kern, Mr. Peter Bryan, Dr. William Roy, and other defendants whose identities are to be determined, and will soon be submitting the appropriate filings under the California Tort Claims Ad, California Fair Employment & Housing A d , etc. Dr. Jadwin is seeking to prosecute various employment-, tort- and contract-related claims arising out of, among other things: (i)

Retaliation in Violation of Cal. Familv Riehts A d : Retaliatory adions engaged in by Kern Medical Center (hereinafter referred to as " K M C ) et al. against Dr. Jadwin for taking medical leaves, in violation of the Cal. Family Rights A d ;

(ii)

Wrongful Demotion i Termination in Violation of Cal. Bus, & Prof. C. 12056 & Conspiracy Relating Thereto: Retaliatory actions engaged in by KMC et al. against Dr. Jadwin in violation of Cal. Bus, & Prof. C. 5 2056 (Protection against Retaliation for Physicians Who Advocate for Medically Appropriate Health Care), and conspiracy relating thereto by certain members of KMC's medical staff;

(iii)

Per Se Defamation & Ratification: Various communications made by certain members of KMC's medical staff which were per se defamatory of Dr. Jadwin's professional competence, and which KMC subsequently ratified and condoned;

(iv)

Disabilitv Discrimination / Failure to Accommodate in Violation of Cal. Fair Employment & Housing Act: Disability-based discriminatory harassment by KMC et al. of Dr. Jadwin, and failure to accommodate disability in violation of the Cal. Fair Employment & Housing A d ;

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 277-2

Filed 12/01/2008

Page 184 of 245

(v)

Breach of Contract 1 Good Faith & Fair Dealing: Breach of Dr. Jadwin's employment contract (and implied covenant of good faith & fair dealing) by KMC et al. for failure to comply with KMC's bylaws and failure to permit Dr. Jadwin until June 16,2006 to decide whether to resign chairmanship (see Mr. Bryan's email to Dr. Jadwin of June 14,2006, where he informs Dr. Jadwin that he is abrogating the June 16 deadline and unilaterally initiating Dr. Jadwin's removal fiom chairmanship), among other things;

(vi)

Negligent Hiring I Su~ervisionI Retention

(vii)

Intentional Infliction of Emotional Distress

Please note that the foregoing list is preliminary and subject to change. Additional causes of action will likely materialize as more facts become known.

I. DEMAND FOR PRESERVATION OF EVIDENCE This letter serves as a formal demand that you take, and cause to be taken, all appropriate a r m a t i v e steps to preserve any and all evidence relating to the foregoing claims. This includes but is not limited to, all emails, oncology conference-related feedback forms and documentation, memos, letters, reports, committee and other meeting minutes, notes taken at meetings with or concerning Dr. Jadwin (including those of Dr. Marvin Kolb, Dr. Irwin Harris and Mr. Peter Bryan), administrative records (including those of Dr. Kolb and Dr. Harris), etc. Failure to do so may constitute negligent or intentional spoliation of evidence and result in, among other things, monetary, evidentiary, issue, and terminating sanctions in the pending lawsuit. In addition, intentional spoliation of evidence constitutes a criminal offense pursuant to California Penal Code 5135. That provision states: Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it fiom being produced, is guilty of a misdemeanor. Please kindly advise us of the identity, address, and telephone number of any party who may possess any evidence relating to the foregoing claims.

11. DEMAND FOR ACCESS TO CREDENTIALS FILE Turning to other matters, please note that KMC is currently in violation of both Cal. Labor C. 5 1198.5 and KMC Bylaws 5 14.9(E) regarding Dr. Jadwin's written request for access to his credentials file, dated May 19, 2006. Dr. Jadwin submitted his request in writing to Dr. Kercher more than a month ago, yet KMC continues to deny Dr. Jadwin (i) physical access to his credentials file, and (ii) a meaningful summary of the contents of the documents which KMC is refusing Dr. Jadwin access to. Please note, the mere recitation of titles of documents referenced

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

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Filed 12/01/2008

Page 185 of 245

in the foregoing subsection (ii), as KMC has provided to Dr. Jadwin, does not constitute a meaningful summary. In addition, I would like to relay Dr. Jadwin's request that I be provided access to his Kern County personnel file as soon as possible. Enclosed herewith is Dr. Jadwin's written request relating thereto.

111. DEMAND FOR ACCOUNTING OF CUMULATIVE MEDICAL LEAVE HOURS As you may know, at the meeting of April 28,2006 (and in Mr. Bryan's subsequent confirmation by fax of even date), Mr. Bryan had directed Dr. Jadwin to contact Mr. Steve O'Conner in the Human Resources department at KMC regarding all leave-related questions. Pursuant to that instruction, Dr. Jadwin spoke by phone with Mr. O'Conner on June 13,2006, and asked him to provide him with a full accounting of the actual hours of medical leave he has thus far exhausted. Dr. Jadwin has yet to receive any response. According to Kern County Civil Service Commission Rule 1201.20, Dr. Jadwin is entitled to up to 6 months' cumulative unpaid sick leave in any given 12-month period. Dr. Jadwin simply seeks to determine where he stands in terms of medical leave hours.

IV. MR. BRYAN'S EMAIL OF JUNE 26,2006 In his email to Dr. Jadwin of June 26,2006, Mr. Bryan directs Dr. Jadwin as follows: (i)

"you are to refrain from entering the facility for any reason other than seeking medical attention"

(ii)

"you are also to refrain from contacting any employee or faculty member of Kern Medical Center for any reason other than seeking medical attention"

(iii)

"In accordance with KMC policy, usage of any and all equipment as well as access to any and all systems has been suspended while you are on your approved personal necessity leave of absence"

Regarding instruction (i), please note that Dr. Jadwin had absolutely no prior notice that his leave would preclude him from access to KMC's facilities. Dr. Jadwin has a number of valuable and important personal documents and effects in his office at KMC which he requires immediate access to. For instance, Dr. Jadwin needs to retrieve CME certificates from his office so that he may submit them in response to a compliance audit, which requires submissions by early next week. Dr. Jadwin will require physical access to his office in order to retrieve these and other personal items. Please let me know what immediate arrangements can be made so that Dr. Jadwin can recover such items. Regarding instruction (ii), please provide me with the legal grounds for imposing on Dr. Jadwin (or any other KMC employee) such overbroad and blanket prohibition against association with other KMC personnel.

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 277-2

Filed 12/01/2008

Page 186 of 245

Regarding instruction (iii), please provide me with the specific provisions in KMC's bylaws, KMC's rules and regulations, Kern County's Employee Manual, Kern County's Civil Service Commission Rules, or other appropriate rules and regulations, which establish that employee access to all equipment will be suspended for the duration of personal necessity (or any other) leaves. I must admit to being unable to locate any such provision. Please note, as mentioned previously, Dr. Jadwin is permitted under Kern County CSC Rules to take up to 6 months' cumulative unpaid sick leave. As we have reason to believe that such 6 month maximum has not been exhausted, we do not acknowledge nor necessarily agree that Dr. Jadwin's current leave can be characterized as personal necessity leave vis-a-vis sick leave. Finally, I would like to speak on Mr. Bryan's claims that he acts out of a "concern" for Dr. Jadwin's welfare, and that "we do not want to you to feel obligated to do work while on a leave of absence", which claims are followed by salient threats of formal termination and other penalties should Dr. Jadwin fail to comply. As Mr. Bryan is aware, the doctor's certification which Dr. Jadwin previously submitted in connection with his medical leave stated that Dr. Jadwin was capable of working 1 to 2 days per workweek. Indeed, KMC had previously reasonably accommodated Dr. Jadwin's disability by permitting Dr. Jadwin to come into work 1 to 2 days a week for several months. I fail to comprehend the sudden change in circumstance that necessitated KMC's recent decision to lock Dr. Jadwin out of the KMC campus. Mr. Bryan's expressions of concern for Dr. Jadwin's welfare strike me as particularly disingenuous. V. CONCLUSION

Litigation is always a measure of last resort and Dr. Jadwin does not undertake it lightly. It is unfortunate that events have compelled Dr. Jadwin to consider litigation at all. If you wish to discuss the foregoing with us, please feel free to contact me anytime at (213) 4531781 or at elee@,LOEL.com. We look forward to working with you toward resolution of Dr. Jadwin's claims.

enc:

Request for Kern County Personnel File

cc:

Dr. David F. Jadwin

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

06/28/2006 12;41 18182499682 Case 1:07-cv-00026-OWW-TAG

Document 277-2

June 27,2006

To Whom It May Concern:

Please turn over my county personnel file to: 'Eugkne Lee 445 South Figueroa Street, Suite 2700 Los Angeles, California 90071 -1632

David F. Jndwin, DO 3 184 Beaudly Terrace

Glendale, California 91208-174.5

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EXHIBIT 17

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

22

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

1 2 3 4 5 6 7 8

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Mark A. Wasser CA SB #60160 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. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

9 10 11

Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy

12 13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA

15 16

Plaintiff,

17 18 19 20

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

DAVID F. JADWIN, D.O.

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

21 22 23

Case No.: 1:07-cv-00026-OWW-TAG DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) Date Action Filed: January 6, 2007 Trial Date: August 26, 2008

24

PROPOUNDING PARTY:

Plaintiff DAVID F. JADWIN, D.O., F.C.A.P.

25

RESPONDING PARTY:

Defendant COUNTY OF KERN

26

SET NUMBER:

ONE (1)

27 28 1 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

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Defendants hereby submit these responses to Plaintiff David F. Jadwin’s Request for

2

Production of Documents, Set One. Defendants have not located all the documents that are

3

responsive to this request and, for that reason, many of the production dates set forth herein are

4

estimates. Defendants will supplement or amend this response, if necessary, as additional

5

documents are located and reviewed.

6

REQUEST FOR PRODUCTION NO. 1

7

Any and all DOCUMENTS RELATING TO the First Affirmative Defense listed in

8

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

9

RESPONSE TO REQUEST NO. 1

10

Defendants object to this request on the grounds that it calls for the production of

11

documents that are protected by the attorney-work-product and attorney-client privileges.

12

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

13

any documents that are responsive to this request.

14

REQUEST FOR PRODUCTION NO. 2

15

Any and all DOCUMENTS RELATING TO the Second Affirmative Defense listed in

16

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

17

RESPONSE TO REQUEST NO. 2

18

Defendants object to this request on the grounds that it calls for the production of

19

documents that are protected by the attorney-work-product and attorney-client privileges.

20

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

21

any documents that are responsive to this request.

22

REQUEST FOR PRODUCTION NO. 3

23

Any and all DOCUMENTS RELATING TO the Third Affirmative Defense listed in

24

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

25

RESPONSE TO REQUEST NO. 3

26

Defendants object to this request on the grounds that it calls for the production of

27

documents that are protected by the attorney-work-product and attorney-client privileges.

28 2 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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1

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

2

any documents that are responsive to this request.

3

REQUEST FOR PRODUCTION NO. 4

4

Any and all DOCUMENTS RELATING TO the Fourth Affirmative Defense listed in

5

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

6

RESPONSE TO REQUEST NO. 4

7

Defendants object to this request on the grounds that it calls for the production of

8

documents that are protected by the attorney-work-product and attorney-client privileges.

9

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

10

any documents that are responsive to this request.

11

REQUEST FOR PRODUCTION NO. 5

12

Any and all DOCUMENTS RELATING TO the Fifth Affirmative Defense listed in

13

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

14

RESPONSE TO REQUEST NO. 5

15

Defendants object to this request on the grounds that it calls for the production of

16

documents that are protected by the attorney-work-product and attorney-client privileges.

17

Without waiving those objections, Defendants will produce all non-privileged documents

18

responsive to this request on or before December 21, 2007. This request is duplicative of other

19

requests contained in Plaintiff’s request for production, set one, and the documents produced in

20

response to this request may refer to the documents produced in response to other requests.

21

REQUEST FOR PRODUCTION NO. 6

22

Any and all DOCUMENTS RELATING TO the Sixth Affirmative Defense listed in

23

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

24

RESPONSE TO REQUEST NO. 6

25

Defendants object to this request on the grounds that it calls for the production of

26

documents that are protected by the attorney-work-product and attorney-client privileges.

27

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

28

any documents that are responsive to this request. 3 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

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REQUEST FOR PRODUCTION NO. 7 Any and all DOCUMENTS RELATING TO the Seventh Affirmative Defense listed in

3

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

4

RESPONSE TO REQUEST NO. 7

5

Defendants object to this request on the grounds that it calls for the production of

6

documents that are protected by the attorney-work-product and attorney-client privileges.

7

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

8

any documents that are responsive to this request.

9

REQUEST FOR PRODUCTION NO. 8

10

Any and all DOCUMENTS RELATING TO the Eighth Affirmative Defense listed in

11

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

12

RESPONSE TO REQUEST NO. 8

13

Defendants object to this request on the grounds that it calls for the production of

14

documents that are protected by the attorney-work-product and attorney-client privileges.

15

Without waiving those objections, Defendants will produce all non-privileged documents

16

responsive to this request on or before December 21, 2007. This request is duplicative of other

17

requests contained in Plaintiff’s request for production, set one, and the documents produced in

18

response to this request may refer to the documents produced in response to other requests.

19

REQUEST FOR PRODUCTION NO. 9

20

Any and all DOCUMENTS RELATING TO the Ninth Affirmative Defense listed in

21

Defendants’ Answer to Plaintiff’s Second Supplemental Complaint.

22

RESPONSE TO REQUEST NO. 9

23

Defendants object to this request on the grounds that it calls for the production of

24

documents that are protected by the attorney-work-product and attorney-client privileges.

25

Without waiving those objections, after diligent search, Defendants’ have not been able to locate

26

any documents that are responsive to this request.

27

REQUEST FOR PRODUCTION NO. 10

28 4 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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1

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Any and all DOCUMENTS RELATING TO YOUR organizational structure during

2

Plaintiff’s employment with YOU, including but not limited to organizational charts, diagrams

3

and drawings.

4

RESPONSE TO REQUEST NO. 10

5

Defendants will produce all documents responsive to this request. Production may occur

6

in stages. The first stage of production will be on November 20, 2007 and may include all

7

responsive documents. If other responsive documents are discovered, they will be produced by

8

December 7, 2007.

9

REQUEST FOR PRODUCTION NO. 11

10

Any and all DOCUMENTS RELATING TO Kern Medical Center personnel directories

11

or lists, including but not limited to names, direct work phone numbers, departments, etc. which

12

were maintained by YOU during Plaintiff’s employment with YOU.

13

RESPONSE TO REQUEST NO. 11

14

Defendants will produce all non-privileged documents responsive to this request.

15

Production may occur in stages. The first stage of production will be on November 20, 2007 and

16

may include all responsive documents. If other responsive documents are discovered, they will

17

be produced by December 7, 2007. Defendants will redact personal or confidential information

18

as appropriate.

19

REQUEST FOR PRODUCTION NO. 12

20

Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact

21

sheets, posters, employee and/or employer handbooks, training materials, and employee and/or

22

employer manuals maintained by YOU that YOU contend governed Plaintiff’s terms and

23

conditions of employment at any time during the period from October 1, 2000 to October 4,

24

2007. These include but are not limited to YOUR ordinances, Kern Medical Center’s

25

Administrative Procedures Manual, Kern Medical Center’s Policy & Administrative Procedures

26

Manual, policies RELATING TO disability discrimination, reasonable accommodation,

27

interactive process, personal leave, administrative leave, medical leave, retaliation, investigations

28

into complaints of unlawful employment practices, discipline of employees, investigation of 5 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

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Page 194 of 245

1

employees, appointment of Kern Medical Center acting department chairs, hiring of Kern

2

Medical Center department chairs, demotion of Kern Medical Center department chairs, and

3

policies RELATING TO Kern Medical Center’s Pathology Department.

4

RESPONSE TO REQUEST NO. 12

5

Defendants object to this request to the extent it requests documents that contain

6

confidential personnel information, documents protected from disclosure by state or federal law,

7

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

8

Without waiving these objections, Defendants will produce documents responsive to this request

9

by December 21, 2007. Defendants will redact confidential peer review and personnel

10

information as appropriate.

11

REQUEST FOR PRODUCTION NO. 13

12

Any and all DOCUMENTS RELATING TO YOUR personnel policies, guidelines, fact

13

sheets, posters, employee and/or employer handbooks, training materials, and employee and/or

14

employer manuals maintained by YOU that YOU contend was distributed or made available to

15

YOUR employees, whether management or non-management, from October 24, 200 to the

16

present and the date of such asserted distribution. These include but are not limited to YOUR

17

ordinances, Kern Medical Center’s Administrative Procedures Manual, Kern Medical Center’s

18

Policy & Administrative Procedures Manual, policies RELATING TO disability discrimination,

19

reasonable accommodation, interactive process, personal leave, administrative leave, medical

20

leave, retaliation, investigations into complaints of unlawful employment practices, discipline of

21

employees, investigation of employees, appointment of Kern Medical Center acting department

22

chairs, hiring of Kern Medical Center department chairs, demotion of Kern Medical Center

23

department chairs, and policies RELATING TO Kern Medical Center’s Pathology Department.

24

RESPONSE TO REQUEST NO. 13

25

Defendants object to this request to the extent it requests documents that contain

26

confidential personnel information, documents protected from disclosure by state or federal law,

27

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

28

Without waiving these objections, Defendants will produce documents responsive to this request 6 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 195 of 245

1

by December 21, 2007. Defendants will redact confidential peer review and personnel

2

information as appropriate.

3

REQUEST FOR PRODUCTION NO. 14

4

Any and all DOCUMENTS RELATING TO peer review, quality management and

5

quality assurance policies and procedures at Kern Medical Center, included but not limited to

6

Kern Medical Center’s Quality Management and Performance Improvement Plan, from October

7

24, 2000 to the present, and the effective dates.

8

RESPONSE TO REQUEST NO. 14

9

Defendants object to this request to the extent it requests documents that contain

10

confidential personnel information, documents protected from disclosure by state or federal law,

11

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

12

Without waiving these objections, Defendants will produce documents responsive to this request

13

by December 7, 2007.1. Defendants will redact confidential peer review and personnel

14

information as appropriate.

15

REQUEST FOR PRODUCTION NO. 15

16 17

Any and all DOCUMENTS RELATING TO any training provided by YOU to YOUR officers, directors, agents or employees on the following subjects:

18

a) disability discrimination

19

b) accommodation of an employee’s disability

20

c) the interactive process regarding accommodation of an employee’s disability

21

d) medical leave rights

22

e) whistleblower retaliation

23

f) medical leave retaliation

24

g) due process required for demotion

25

h) due process required for pay cut

26

i) due process required for termination of employment

27

j) defamation

28

k) Fair Labor Standards Act 7 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Page 196 of 245

RESPONSE TO REQUEST NO. 15

2

Defendants object to this request to the extent it requests documents that contain

3

confidential personnel information, documents protected from disclosure by state or federal law,

4

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

5

Without waiving these objections, Defendants will produce documents responsive to this request

6

by December 21, 2007.

7

REQUEST FOR PRODUCTION NO. 16 Any and all DOCUMENTS RELATING To the PERSONNEL FILES of the following

8 9

people.

10

a) Plaintiff David F. Jadwin

11

b) Elsa Ang

12

c) Ellen Bunyi-Teopengco

13

d) Philip Dutt

14

e) Carol Gates

15

f) Adam Lang

16

g) Fangluo Liu

17

h) Savita Shertukde

18

i) Navin Amin

19

j) Kathy Griffith

20

k) Alice Hevle

21

l) Denise Long

22

m) Gilbert Martinez

23

n) Albert McBride

24

o) Javad Naderi

25

p) Jane Thornton

26

q) Nitin Athavale

27

r) Chester Lau

28

s) Jennifer J. Abraham 8 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

t) Bernard C. Barmann

2

u) Karen S. Barnes

3

v) Peter K. Bryan

4

w) David Culberson

5

x) Irwin E. Harris

6

y) Royce Johnson

7

z) Eugene K. Kercher

8

aa) Alan Scott Ragland

9

bb) William Roy

10

cc) Maureen Martin

11

dd) Steven O‘Connor

12

ee) Antoinette Smith

13

ff) Edward Taylor

14

gg) Marvin Kolb

15

hh) Dianne McConnehey

16

ii) Renita Nunn

17

jj) Ravi Patel

18

kk) Jose Perez

19

ll) Evangeline Gallegos

20

mm)

21

nn) Bonnie Quinonez

22

oo) James Sproul

23

pp) Rebecca Rivera

24

qq) Sheldon Freedman

25

rr) Joseph Mansour

26

ss) George Alkouri

27

tt) Nicole Sharkey

28

Document 277-2

Filed 12/01/2008

Sergio Perticucci

RESPONSE TO REQUEST NO. 16 9 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

Page 197 of 245

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

1

Document 277-2

Filed 12/01/2008

Page 198 of 245

Defendants have already produced the personnel file of David F. Jadwin. Defendants

2

will confirm that the personnel file previously produced was complete as of the time of its

3

production and, on or before December 7, 2007, will augment the documents previously

4

produced with any additional materials, if any, that have been added into Mr. Jadwin’s personnel

5

file since the file was produced. Plaintiff has narrowed the scope of this request by eliminating

6

all other documents initially requested.

7

REQUEST FOR PRODUCTION NO. 17

8 9 10

Any and all DOCUMENTS RELATING TO the search, recruitment, application, interviewing, and hiring process that resulted in Plaintiff’s employment by YOU. RESPONSE TO REQUEST NO. 17

11

Defendants object to this request to the extent it requests documents that contain

12

confidential personnel information, documents protected from disclosure by state or federal law,

13

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

14

Without waiving these objections, Defendants will produce all documents responsive to this

15

request by December 21, 2007.

16

REQUEST FOR PRODUCTION NO. 18

17

Any and all DOCUMENTS RELATING TO the terms, conditions and privileges of

18

Plaintiff’s employment with YOU.

19

RESPONSE TO REQUEST NO. 18

20 21 22

Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 19 Any and all DOCUMENTS RELATING TO Plaintiff’s job duties and responsibilities for

23

each position held by Plaintiff during this employment with YOU.

24

RESPONSE TO REQUEST NO. 19

25 26 27 28

Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 20 Any and all DOCUMENTS RELATING TO Plaintiff’s payroll, compensation, base salary and “professional fee payments”, as that term is defined in Plaintiff’s employment 10 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 199 of 245

1

contracts with YOU, including but not limited to any and all changes in compensation and the

2

reasons for changes, throughout Plaintiff’s employment with YOU.

3

RESPONSE TO REQUEST NO. 20

4 5 6

Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 21 Any and all DOCUMENTS RELATING TO YOUR policies, guidelines and practices

7

regarding base salary steps, salary guidelines, deferred compensation plans, pension plans, health

8

insurance and employment benefits applicable to Plaintiff’s position s held throughout his

9

employment with YOU.

10 11 12 13

RESPONSE TO REQUEST NO. 21 Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 22 Any and all DOCUMENTS RELATING TO Plaintiff’s work schedule and/or removal

14

there from, including but not limited to timesheets, from October 24, 200 to present.

15

RESPONSE TO REQUEST NO. 22

16 17 18

Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 23 Any and all DOCUMENTS RELATING TO Dr. Phillip Dutt’s timesheets, from April 20

19

2005 to the present.

20

RESPONSE TO REQUEST NO. 23

21

Defendants object to this request to the extent it requests documents that contain

22

confidential personnel information, documents protected from disclosure by state or federal law,

23

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

24

Without waiving these objections, Defendants will produce all non-privileged documents

25

responsive to this request by December 21, 2007. Defendants will redact confidential

26

information, in any, as appropriate.

27

REQUEST FOR PRODUCTION NO. 24

28 11 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Page 200 of 245

Any and all DOCUMENTS RELATING TO Dr. Savita Shertukde’s timesheets, from

2

January 4, 2005 to present.

3

RESPONSE TO REQUEST NO. 24

4

Defendants object to this request to the extent it requests documents that contain

5

confidential personnel information, documents protected from disclosure by state or federal law,

6

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

7

Without waiving these objections, Defendants will produce all non-privileged documents

8

responsive to this request by December 21, 2007. Defendants will redact confidential

9

information, in any, as appropriate.

10 11

REQUEST FOR PRODUCTION NO. 25 Any and all DOCUMENTS RELATING TO performance reviews, comments,

12

complaints, warnings, reprimands, counseling, advisory notices or evaluations of Plaintiff’s

13

performance of his job duties throughout his employment with YOU, whether formal or

14

informal.

15

RESPONSE TO REQUEST NO. 25

16

Defendants object to this request to the extent it requests documents that contain

17

confidential personnel information, documents protected from disclosure by state or federal law,

18

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

19

Without waiving these objections, Defendants will produce all non-privileged documents

20

responsive to this request by December 7, 2007. Defendants will redact confidential

21

information, in any, as appropriate.

22

REQUEST FOR PRODUCTION NO. 26

23

Any and all DOCUMENTS maintained by Plaintiff at Kern Medical Center during his

24

employment by YOU, including any and all e-mails, Groupwise calendars, memoranda, written

25

materials, and computer files stored on Plaintiff’s computer at Kern Medical Center’s servers.

26

RESPONSE TO REQUEST NO. 26

27 28

After diligent search, Defendants believe Groupwise calendar information was deleted many months ago as part of the routine 90-day cycling of the Groupwise software. Defendants 12 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 201 of 245

1

are continuing to search for other materials that were on the computer that was assigned to

2

Plaintiff. Some material was archived before the computer was reassigned. Defendants have

3

identified about 3,000 pages of documents that appear to be responsive to this request but have

4

not yet concluded their search. Defendants will produce all documents responsive to this request

5

by December 7, 2007.

6

REQUEST FOR PRODUCTION NO. 27

7

Any and all DOCUMENTS RELATING TO any meetings RELATING TO Plaintiff or

8

Plaintiff’s employment at Kern Medical Center.

9

RESPONSE TO REQUEST NO. 27

10

Defendants object to this request to the extent it requests documents that contain

11

confidential personnel information, documents protected from disclosure by state or federal law,

12

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

13

Without waiving these objections, Defendants will produce documents responsive to this request

14

by December 7, 2007. Defendants will redact confidential peer review and personnel

15

information, if any, as appropriate.

16

REQUEST FOR PRODUCTION NO. 28

17

Any and all DOCUMENTS RELATING TO performance reviews, comments,

18

complaints, warnings, reprimands, counseling, advisory notices or evaluations of the Kern

19

Medical Center Pathology Department, whether formal or informal, from October 24, 1995 to

20

the present.

21

RESPONSE TO REQUEST NO. 28

22

Defendants object to this request to the extent it requests documents that contain

23

confidential personnel information, documents protected from disclosure by state or federal law,

24

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

25

Without waiving these objections, Defendants will produce documents responsive to this request

26

by December 7, 2007. Defendants will redact confidential peer review and personnel

27

information as appropriate.

28

REQUEST FOR PRODUCTION NO. 29 13 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

1

Any and all DOCUMENTS RELATING TO Plaintiff’s complaints of:

2

a) disability discrimination

3

b) failure to accommodate

4

c) failure to engage in an interactive process

5

d) violation of medical leave rights

6

e) whistleblower retaliation

7

f) medical leave retaliation

8

g) deprivation of property without due process

9

h) defamation

10 11

Page 202 of 245

i) Fair Labor Standards Act violations RESPONSE TO REQUEST NO. 29

12

Defendants object to this request to the extent it requests documents that contain

13

confidential personnel information, documents protected from disclosure by state or federal law,

14

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

15

Without waiving these objections, Defendants will produce documents responsive to this request

16

by December 21, 2007. Defendants will redact confidential peer review and personnel

17

information as appropriate.

18

REQUEST FOR PRODUCTION NO. 30

19

Any and all DOCUMENTS RELATING TO any investigation of Plaintiff’s complaints

20

of disability discrimination, failure to accommodate, failure to engage in an interactive process,

21

violation of medical leave rights, whistleblower retaliation, medical leave retaliation, defamation,

22

and/or deprivation of property without due process.

23

RESPONSE TO REQUEST NO. 30

24

Defendants object to this request to the extent it requests documents that contain

25

confidential personnel information, documents protected from disclosure by state or federal law,

26

including the peer-review privilege, or documents that are subject to the attorney-client privilege.

27

Without waiving these objections, Defendants will produce documents responsive to this request

28 14 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 203 of 245

1

by December 21, 2007. Defendants will redact confidential peer review and personnel

2

information as appropriate.

3

REQUEST FOR PRODUCTION NO. 31

4

Any and all DOCUMENTS RELATING TO any procedures available to YOUR

5

employees to complain of corruption, fraud and other wrongful, illegal or unethical conduct, that

6

YOU contend was distributed or made available to YOUR employees, whether management or

7

non-management, from October 24, 2000 to the present, and the date of such asserted

8

distribution(s).

9

RESPONSE TO REQUEST NO. 31

10 11

Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 32

12

Any and all DOCUMENTS RELATING TO YOUR discipline of any employee against

13

whom a complaint or grievance of discrimination, harassment, defamation, retaliation, failure to

14

accommodate, and/or failure to engage in an interactive process in their employment was made

15

from October 24, 2000 to date.

16

RESPONSE TO REQUEST NO. 32

17

Defendants object to this request on the grounds that it requests documents that contain

18

confidential personnel information, documents protected from disclosure by state or federal law,

19

including HIPAA and the peer-review privilege, and documents that contain information that is

20

subject to the attorney-client privilege. Defendants do not believe these objections can be

21

resolved by redaction. Defendants also object on the grounds that the request is not reasonably

22

calculated to lead to the discovery of admissible evidence.

23

REQUEST FOR PRODUCTION NO. 33

24

Any and all DOCUMENTS RELATING TO complaints or grievances made by YOUR

25

past or present employees against YOU for defamation, retaliation, disability discrimination,

26

failure to accommodate, and/or failure to engage in an interactive process, including but not

27

limited to any informal or internal complaints, grievances or charges to any state or federal

28

agency, and complaints filed in any state or federal court from October 24, 2000 to date. 15 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1 2

Document 277-2

Filed 12/01/2008

Page 204 of 245

RESPONSE TO REQUEST NO. 33 Defendants object to this request on the grounds that it calls for the production of

3

documents that contain confidential personnel information that is not relevant to any issues in

4

this case. Consequently, this request is not reasonably calculated to lead to the discovery of

5

admissible evidence. Defendants also object on the ground that the phrase, “informal or internal

6

complaints” is vague and, depending on interpretation, could include any off-hand gripe by any

7

employee, to the extent it was memorialized in writing. Defendant County of Kern employs

8

several thousand employees. In the past seven years, there could be many documents that fit the

9

description of this request yet none have anything to do with the issues in this case. This request

10

is, accordingly, overbroad and burdensome. Defendants do not believe redaction would resolve

11

these objections.

12

REQUEST FOR PRODUCTION NO. 34

13

Any and all DOCUMENTS RELATING TO any complaints or grievances made to YOU

14

by Plaintiff.

15

RESPONSE TO REQUEST NO. 34

16

Defendants believe all documents responsive to this request have been previously

17

produced to Plaintiff. Defendants will confirm this, or produce additional documents if

18

necessary, by December 7, 2007.

19

REQUEST FOR PRODUCTION NO. 35

20

Any and all DOCUMENTS RELATING TO Plaintiff which YOU sent to or received

21

from any governmental or regulatory authority, including but not limited to the California

22

Department of Fair Employment and Housing, the California Labor and Workforce Development

23

Agency, and the U.S. Department of Labor.

24

RESPONSE TO REQUEST NO. 35

25

Defendants believe all documents responsive to this request have been previously

26

produced to Plaintiff. Defendants will confirm this, or produce additional documents if

27

necessary, by December 7, 2007.

28

REQUEST FOR PRODUCTION NO. 36 16 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Page 205 of 245

Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and

2

evaluation of candidates for the position of staff pathologist at Kern Medical Center during the

3

period from January 1, 2006 to present.

4

RESPONSE TO REQUEST NO. 36

5

Defendants object to this request on the grounds that it calls for the production of

6

documents that contain confidential personnel information that is not relevant to any issues in

7

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

8

Defendants also object to this request to the extent it requests information protected from

9

disclosure by state or federal law, including HIPAA and the peer review privilege, and

10

documents that are subject to the attorney-client privilege. Without waving these objections,

11

Defendants will produce non-privileged documents responsive to this request, if any, by

12

December 7, 2007. Defendants will redact confidential and privileged information as

13

appropriate.

14

REQUEST FOR PRODUCTION NO. 37

15

Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and

16

evaluation of candidates for the position of Chair or Chief of Pathology at Kern Medical Center

17

during the period from January 1, 2006 to present.

18

RESPONSE TO REQUEST NO. 37

19

Defendants object to this request on the grounds that it calls for the production of

20

documents that contain confidential personnel information that is not relevant to any issues in

21

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

22

Defendants also object to this request to the extent it requests information protected from

23

disclosure by state or federal law, including HIPAA and the peer review privilege, and

24

documents that are subject to the attorney-client privilege. Without waving these objections,

25

Defendants will produce non-privileged documents responsive to this request, if any, by

26

December 7, 2007. Defendants will redact confidential and privileged information as

27

appropriate.

28

REQUEST FOR PRODUCTION NO. 38 17 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Page 206 of 245

Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and

2

evaluation of candidates for the position of locus tenens pathologist at Kern Medical Center

3

during the period from January 1, 2006 to present.

4

RESPONSE TO REQUEST NO. 38

5

Defendants object to this request on the grounds that it calls for the production of

6

documents that contain confidential personnel information that is not relevant to any issues in

7

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

8

Defendants also object to this request to the extent it requests information protected from

9

disclosure by state or federal law, including HIPAA and the peer review privilege, and

10

documents that are subject to the attorney-client privilege. Without waving these objections,

11

Defendants will produce non-privileged documents responsive to this request, if any, by

12

December 7, 2007. Defendants will redact confidential and privileged information as

13

appropriate.

14

REQUEST FOR PRODUCTION NO. 39

15

Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and

16

evaluation of candidates for the position of Chair or Chief of OB-GYN at Kern Medical Center

17

during the period from January 1, 2006 to present.

18

RESPONSE TO REQUEST NO. 39

19

Defendants object to this request on the grounds that it calls for the production of

20

documents that contain confidential personnel information that is not relevant to any issues in

21

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

22

Defendants also object to this request to the extent it requests information protected from

23

disclosure by state or federal law, including HIPAA and the peer review privilege, and

24

documents that are subject to the attorney-client privilege. Without waving these objections,

25

Defendants will produce non-privileged documents responsive to this request, if any, by

26

December 7, 2007. Defendants will redact confidential and privileged information as

27

appropriate.

28

REQUEST FOR PRODUCTION NO. 40 18 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 207 of 245

Any and all DOCUMENTS RELATING TOYOUR removal of Dr. Royce Johnson from

1 2

the position of Chair or Chief of Medicine at Kern Medical Center.

3

RESPONSE TO REQUEST NO. 40 Defendants object to this request on the grounds that it calls for the production of

4 5

documents that contain confidential personnel information that is not relevant to any issues in

6

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

7

Defendants also object to this request to the extent it requests information protected from

8

disclosure by state or federal law, including HIPAA and the peer review privilege, and

9

documents that are subject to the attorney-client privilege.

10

REQUEST FOR PRODUCTION NO. 41 Any and all DOCUMENTS RELATING TOYOUR search for, recruitment, of and

11 12

evaluation of candidates for the position of Chair or Chief of Medicine at Kern Medical Center

13

during the period from October 24, 2000 to present.

14

RESPONSE TO REQUEST NO. 41 Defendants object to this request on the grounds that it calls for the production of

15 16

documents that contain confidential personnel information that is not relevant to any issues in

17

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

18

Defendants also object to this request to the extent it requests information protected from

19

disclosure by state or federal law, including HIPAA and the peer review privilege, and

20

documents that are subject to the attorney-client privilege. Without waving these objections,

21

Defendants will produce non-privileged documents responsive to this request, if any, by

22

December 21, 2007. Defendants will redact confidential and privileged information as

23

appropriate.

24

REQUEST FOR PRODUCTION NO. 42

25

Any and all DOCUMENTS RELATING TO presentations made at the Kern Medical

26

Center oncology conference in May 2005, including but not limited to participant evaluation

27

forms.

28

RESPONSE TO REQUEST NO. 42 19 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 208 of 245

Defendants object to this request on the grounds that it calls for the production of

1 2

documents that contain confidential personnel information that is not relevant to any issues in

3

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

4

Defendants also object to this request to the extent it requests information protected from

5

disclosure by state or federal law, including HIPAA and the peer review privilege, and

6

documents that are subject to the attorney-client privilege. Without waving these objections,

7

Defendants will produce non-privileged documents responsive to this request, if any, by

8

December 7, 2007. Defendants will redact confidential and privileged information as

9

appropriate.

10

REQUEST FOR PRODUCTION NO. 43 Any and all DOCUMENTS RELATING TO Plaintiff’s presentations made at the Kern

11 12

Medical Center oncology conference on or about October 12, 2005.

13

RESPONSE TO REQUEST NO. 43 Defendants will produce all documents responsive to this request by December 7, 2007.

14 15

REQUEST FOR PRODUCTION NO. 44 Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from

16 17

Chair of Kern Medical Center’s Pathology Department to staff pathologist.

18

RESPONSE TO REQUEST NO. 44 Defendants object to this request to the extent it requests documents that are privileged

19 20

under the attorney-client privilege. Without waiving this objection Defendants will produce all

21

non-privileged documents responsive to this request by December 7, 2007.

22

REQUEST FOR PRODUCTION NO. 45

23

Any and all DOCUMENTS RELATING To the “packets containing information about

24

Dr. Jadwin” which Peter Bryan collected at the end of Kern Medical Center’s Joint Conference

25

Committee discussion and vote on removal of Plaintiff from Chair of Pathology on July 10,

26

2006.

27

RESPONSE TO REQUEST NO. 45

28 20 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Page 209 of 245

Defendants are searching for documents responsive to this request. Because of

2

administrative and management changes at Kern Medical Center, it may not be possible to

3

reconstruct the “packets” requested. Defendants object to this request to the extent it requests

4

information protected by the peer-review or attorney-client privileges. Defendants also object to

5

this request to the extent it seeks documents that contain confidential personnel information.

6

Without waiving these objections, and to the extent that the “packets” can be reconstructed,

7

Defendants will produce all documents responsive to this request, if any, by December 21, 2007.

8

REQUEST FOR PRODUCTION NO. 46

9

Any and all DOCUMENTS RELATING TO YOUR decision to place Plaintiff on

10

administrative leave on or about December 7, 2006.

11

RESPONSE TO REQUEST NO. 46

12

Defendants object to this request to the extent it requests information protected by the

13

attorney-client privilege. Without waiving that objection, Defendants believe all documents

14

responsive to this request have been previously produced to Plaintiff. Defendants will confirm

15

this, or produce additional documents if necessary, by December 7, 2007.

16

REQUEST FOR PRODUCTION NO. 47

17

Any and all DOCUMENTS RELATING TO YOUR decision to restrict Plaintiff to his

18

home during working hours from on or about December 7, 2006 to on or about May 1, 2007

19

while he was on administrative leave.

20

RESPONSE TO REQUEST NO. 47

21

Defendants believe all documents responsive to this request have been previously

22

produced to Plaintiff. Defendants will confirm this, or produce additional documents if

23

necessary, by December 7, 2007.

24

REQUEST FOR PRODUCTION NO. 48

25

Any and all DOCUMENTS RELATING TO YOUR decision to lift the restriction of

26

Plaintiff to his home during working hours from on or about December 7, 2006 to on or about

27

May 1, 2007 while he was on administrative leave.

28

RESPONSE TO REQUEST NO. 48 21 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Page 210 of 245

Defendants believe all documents responsive to this request have been previously

2

produced to Plaintiff. Defendants will confirm this, or produce additional documents if

3

necessary, by December 7, 2007.

4

REQUEST FOR PRODUCTION NO. 49

5

Any and all DOCUMENTS RELATING TO YOUR decision not to renew Plaintiff’s

6

employment contract with YOU that was purportedly made on or about May 1, 2007.

7

RESPONSE TO REQUEST NO. 49

8 9

Defendants object to this request to the extent it requests information protected by the attorney-client privilege. Without waiving that objection, Defendants believe all documents

10

responsive to this request have been previously produced to Plaintiff. Defendants will confirm

11

this, or produce additional documents if necessary, by December 7, 2007.

12

REQUEST FOR PRODUCTION NO. 50

13

Any and all DOCUMENTS RELATING TO any discipline, coaching, reprimand or

14

corrective action taken against Plaintiff by YOU.

15

RESPONSE TO REQUEST NO. 50

16

Defendants believe all documents responsive to this request have been previously

17

produced to Plaintiff. Defendants will confirm this, or produce additional documents if

18

necessary, by December 21, 2007.

19

REQUEST FOR PRODUCTION NO. 51

20

Any and all DOCUMENTS RELATING TO Kern Medical Center’s Disruptive Physician

21

Policy, including but not limited to Bylaw Committee meeting minutes.

22

RESPONSE TO REQUEST NO. 51

23

Defendants object to this request to the extent it requests documents that contain

24

confidential personnel information, documents protected from disclosure by state or federal law,

25

including the HIPAA and the peer-review privilege, or documents that are subject to the

26

attorney-client privilege. Without waiving these objections, Defendants will produce documents

27

responsive to this request by December 7, 2007. Defendants will redact confidential peer review

28

and personnel information as appropriate. 22 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1 2

Document 277-2

Filed 12/01/2008

REQUEST FOR PRODUCTION NO. 52 Any and all DOCUMENTS RELATING TO Dr. Rebecca Rivera’s lawsuit against Kern

3

Medical Center filed in Kern County California Superior Court.

4

RESPONSE TO REQUEST NO. 52

5

Page 211 of 245

Plaintiff has narrowed this request to eliminate any documents that have been filed with

6

the Kern County Superior Court. As so limited, this request seeks documents in the County

7

Counsel’s litigation file, many of which are protected by the attorney work product and attorney-

8

client privileges. To the extent this request seeks information that is protected by the attorney-

9

client privilege, Defendants object to it. Defendants also object to this request on the grounds

10

that it is not reasonably calculated to lead to the discovery of admissible evidence. Defendants

11

are in the process of reviewing documents that are may be responsive to this request and, without

12

waiving these objections, will produce non-privileged documents, if any, by December 21, 2007.

13

Defendants may redact privileged information if appropriate.

14

REQUEST FOR PRODUCTION NO. 53

15

Any and all DOCUMENTS RELATING TO services provided to YOU by the Camden

16

Group RELATING TO Kern Medical Center.

17

RESPONSE TO REQUEST NO. 53

18

Defendants believe all documents responsive to this request have been previously

19

produced to Plaintiff. Defendants will confirm this, or produce additional documents if

20

necessary, by December 7, 2007.

21

REQUEST FOR PRODUCTION NO. 54

22

Any and all DOCUMENTS RELATING TO statistics maintained by YOU RELATING

23

TO patient fatalities at Kern Medical Center from October 24, 2000 to the present.

24

RESPONSE TO REQUEST NO. 54

25

Defendants object to this request on the grounds that it calls for the production of

26

documents that contain confidential personnel information that is not relevant to any issues in

27

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

28

Defendants also object to this request to the extent it requests information protected from 23 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 212 of 245

1

disclosure by state or federal law, including HIPAA and the peer review privilege, and

2

documents that are subject to the attorney-client privilege. Without waving these objections,

3

Defendants will produce non-privileged documents responsive to this request, if any, by

4

December 21, 2007. Defendants will redact confidential and privileged information as

5

appropriate. If the redaction process renders the resulting document useless, Defendants will

6

inform Plaintiff.

7

REQUEST FOR PRODUCTION NO. 55

8 9

Any and all DOCUMENTS RELATING TO the review of Kern Medical Center’s placental evaluations and billing activity as conducted by outside consultants, including but not

10

limited to ProPay Physician Services, LLC, from October 24, 2000 to the present.

11

RESPONSE TO REQUEST NO. 55

12

Defendants object to this request on the grounds that it calls for the production of

13

documents that contain confidential personnel information that is not relevant to any issues in

14

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

15

Defendants also object to this request to the extent it requests information protected from

16

disclosure by state or federal law, including HIPAA and the peer review privilege, and

17

documents that are subject to the attorney-client privilege. Without waving these objections,

18

Defendants will produce non-privileged documents responsive to this request, if any, by

19

December 21, 2007. Defendants will redact confidential and privileged information as

20

appropriate.

21

REQUEST FOR PRODUCTION NO. 56

22

Any and all DOCUMENTS RELATING TO blood bank monthly reports, included but

23

not limited to reports generated by Michelle Burris, from January 2006 to present.

24

RESPONSE TO REQUEST NO. 56

25

Defendants object to this request on the grounds that it calls for the production of

26

documents that contain confidential personnel information that is not relevant to any issues in

27

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

28

Defendants also object to this request to the extent it requests information protected from 24 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 213 of 245

1

disclosure by state or federal law, including HIPAA and the peer review privilege, and

2

documents that are subject to the attorney-client privilege. Without waving these objections,

3

Defendants will produce non-privileged documents responsive to this request, if any, by

4

December 21, 2007. Defendants will redact confidential and privileged information as

5

appropriate.

6

REQUEST FOR PRODUCTION NO. 57

7

Any and all DOCUMENTS RELATING TO product chart copy-related quality assurance

8

reports from October 24, 2000 to the present.

9

RESPONSE TO REQUEST NO. 57

10

Defendants object to this request on the grounds that it calls for the production of

11

documents that contain confidential personnel information that is not relevant to any issues in

12

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

13

Defendants also object to this request to the extent it requests information protected from

14

disclosure by state or federal law, including HIPAA and the peer review privilege, and

15

documents that are subject to the attorney-client privilege. Without waving these objections,

16

Defendants will produce non-privileged documents responsive to this request, if any, by

17

December 21, 2007. Defendants will redact confidential and privileged information as

18

appropriate.

19

REQUEST FOR PRODUCTION NO. 58

20

Any and all DOCUMENTS RELATING TO prostate needle biopsy reports produced by

21

Dr. Elsa Ang for which Plaintiff had requested a lookback study in October 2005.

22

RESPONSE TO REQUEST NO. 58

23

Defendants object to this request on the grounds that it calls for the production of

24

documents that contain confidential personnel information that is not relevant to any issues in

25

this case and is not reasonably calculated to lead to the discovery of admissible evidence.

26

Defendants also object to this request to the extent it requests information protected from

27

disclosure by state or federal law, including HIPAA and the peer review privilege, and

28

documents that are subject to the attorney-client privilege. Without waving these objections, 25 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 214 of 245

1

Defendants will produce non-privileged documents responsive to this request, if any, by

2

December 21, 2007. Defendants will redact confidential and privileged information as

3

appropriate.

4

REQUEST FOR PRODUCTION NO. 59 Any and all DOCUMENTS RELATING TO sign-in sheets for Kern Medical Center’s

5 6

Cancer Clinic from January 1, 2003 to the present.

7

RESPONSE TO REQUEST NO. 59 Defendants will produce all documents responsive to this request by December 21, 2007.

8 9

REQUEST FOR PRODUCTION NO. 60 Any and all DOCUMENTS RELATING TO Workplace Violence or Threat Incident

10 11

Reports for all Kern Medical Center personnel from October 24, 2000 to the present.

12

RESPONSE TO REQUEST NO. 60

13

Defendants object to this request to the extent it seeks documents that contain

14

confidential personnel information or information protected by the attorney-client privilege.

15

Defendants also object to the extent the documents contain information protected by the peer-

16

review privilege and on the grounds that the request is not reasonably calculated to lead to the

17

discovery of admissible evidence. Without waiving these objections, Defendants will produce

18

all documents responsive to this request by December 21, 2007. Defendants will redact

19

confidential or privileged information as appropriate.

20

REQUEST FOR PRODUCTION NO. 61 Any and all DOCUMENTS RELATING TO Fine Needle Aspiration policies at Kern

21 22

Medical Center from October 24, 2000 to the present, including but not limited to

23

DOCUMENTS RELATING TO the outside consultant study conducted by Dr. David Lieu in

24

2004.

25

RESPONSE TO REQUEST NO. 61

26

Defendants object to this request to the extent it seeks documents that contain

27

confidential personnel information or information protected by the attorney-client privilege.

28

Defendants also object to the extent the documents contain information protected by the peer26 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 215 of 245

1

review privilege and on the grounds that the request is not reasonably calculated to lead to the

2

discovery of admissible evidence. Without waiving these objections, Defendants will produce

3

all documents responsive to this request by December 21, 2007. Defendants will redact

4

confidential or privileged information as appropriate.

5

REQUEST FOR PRODUCTION NO. 62

6

Any and all DOCUMENTS RELATING TO Peter Bryan’s appointment calendar from

7

January 1, 2004 to September 1, 2006.

8

RESPONSE TO REQUEST NO. 62

9 10 11 12

Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 63 Any and all DOCUMENTS RELATING TO meeting minutes for the following Kern Medical Center committees or groups from October 24, 2000 to the present:

13

a) Medical Executive Committee

14

b) Joint Conference Committee

15

c) Quality Management Committee

16

d) Cancer Committee

17

e) Second Level Peer Review Committee

18

f) Transfusion Committee

19

g) Executive Staff Meetings

20 21

RESPONSE TO REQUEST NO. 63 Defendants object to this request to the extent it requests documents that contain

22

confidential personnel information or information that is protected from disclosure by state or

23

federal law, including HIPAA and the peer review privilege, or documents that are subject to the

24

attorney/client privilege. Without waiving these objections, Defendants will produce documents

25

responsive to this request by December 21, 2007. Defendants will redact confidential or

26

privileged information as appropriate.

27

REQUEST FOR PRODUCTION NO. 64

28 27 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1

Document 277-2

Filed 12/01/2008

Any and all DOCUMENTS RELATING TO policies of Kern Medical Center’s

2

Pathology Department from October 24, 2000 to the present.

3

RESPONSE TO REQUEST NO. 64

4 5

Page 216 of 245

Defendants will produce all documents responsive to this request by December 21, 2007. REQUEST FOR PRODUCTION NO. 65

6

Any and all DOCUMENTS RELATING TO case send-out logs for Kern Medical

7

Center’s Pathology Department from January 1, 1999 to the present, including but not limited to

8

corresponding Kern Medical Center pathology reports and reports from outside consultants.

9

RESPONSE TO REQUEST NO. 65

10

Defendants object to this request to the extent it requests documents that contain

11

confidential personnel information or information that is protected from disclosure by state or

12

federal law, including HIPAA and the peer review privilege, or documents that are subject to the

13

attorney/client privilege. Without waiving these objections, Defendants will produce documents

14

responsive to this request by December 7, 2007. Defendants will redact confidential or

15

privileged information as appropriate.

16

REQUEST FOR PRODUCTION NO. 66

17

Any and all DOCUMENTS RELATING TO monthly turn-around-time reports and logs

18

– by pathologist – for pathology reports processed at Kern Medical Center, including but not

19

limited to Pathology Department Semi-annual Reports to the Medical Staff, for the time period

20

from January 1, 1999 to the present.

21

RESPONSE TO REQUEST NO. 66

22

Defendants object to this request to the extent it requests documents that contain

23

privileged peer review information. Without waiving this objection Defendants will produce all

24

documents responsive to this request by December 7, 2007. Defendants will redact all privileged

25

information as appropriate.

26

REQUEST FOR PRODUCTION NO. 67

27 28

Any and all DOCUMENTS RELATING TO monthly or semi-monthly turn-around-time reports and logs – for Kern Medical Center’s Pathology Department as a whole – for pathology 28 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 217 of 245

1

reports processed at Kern Medical Center including but not limited to surgical pathology,

2

cytology and bone marrow reports, for the time period from January 1, 1999 to the present.

3

RESPONSE TO REQUEST NO. 67

4

Defendants object to this request to the extent it requests documents that contain

5

privileged peer review information. Without waiving this objection Defendants will produce all

6

documents responsive to this request by December 7, 2007. Defendants will redact all privileged

7

information as appropriate.

8

REQUEST FOR PRODUCTION NO. 68

9

Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS authored,

10

reviewed or approved by Plaintiff which YOU sent to any outside pathologists for outside review

11

from June 14, 2006 to the present.

12

RESPONSE TO REQUEST NO. 68

13

Defendants object to this request to the extent it requests documents that contain

14

privileged peer review information. Without waiving this objection Defendants will produce all

15

documents responsive to this request by December 7, 2007. Defendants will redact all privileged

16

information as appropriate.

17

REQUEST FOR PRODUCTION NO. 69

18

Any and all DOCUMENTS RELATING TO PATHOLOGY REPORTS RELATING TO

19

Case Numbers S06-4131, S06-4619, S06-5229, S06-73276.

20

RESPONSE TO REQUEST NO. 69

21

Defendants object to this request to the extent it requests documents that contain

22

information that is confidential under HIPAA. Defendants also object to the extent that it

23

requests documents that contain privileged peer-review information. Without waiving these

24

objections Defendants will produce all documents responsive to this request by December 7,

25

2007. Defendants will redact confidential and privileged information as appropriate.

26

REQUEST FOR PRODUCTION NO. 70

27 28

Any and all DOCUMENTS RELATING TO peer review RELATING TO Kern Medical Center’s Pathology Department during the time period from January 1, 1995 to the present, 29 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 218 of 245

1

including but not limited to computer-generated data, monthly peer review records completed by

2

pathologists, and peer review comment sheets that are completed by pathologists upon discovery

3

of a discrepancy.

4

RESPONSE TO REQUEST NO. 70

5

Defendants object to this request on the ground that it requests privileged peer-review

6

information. Defendants also object on the ground that it requests information that is

7

confidential under HIPAA and not reasonably calculated to lead to the discovery of admissible

8

evidence. Without waiving these objections, Defendants will produce documents responsive to

9

this request by January 7, 2008 if it is possible to redact the confidential and privileged

10

information without rendering the resulting document useless.

11

REQUEST FOR PRODUCTION NO. 71

12

Any and all DOCUMENTS RELATING TO exceptional event logs for histology and

13

pathology on Kern Medical Center’s Pathology Department from January 1, 2006 to the present.

14

RESPONSE TO REQUEST NO. 71

15

Defendants object to this request to the extent it requests documents that contain

16

information that is confidential under HIPAA. Defendants also object to the extent that it

17

requests documents that contain privileged peer review information. Without waiving these

18

objections Defendants will produce all documents responsive to this request by December 7,

19

2007. Defendants will redact confidential and privileged information as appropriate.

20

REQUEST FOR PRODUCTION NO. 72

21

Any and all DOCUMENTS RELATING TO paper accession logs at Kern Medical

22

Center’s Pathology Department from January 1, 2006 to present.

23

RESPONSE TO REQUEST NO. 72

24

Defendants object to this request to the extent it requests documents that contain

25

information that is confidential under HIPAA. Defendants also object to the extent that it

26

requests documents that contain privileged peer review information. Without waiving these

27

objections Defendants will produce all documents responsive to this request by December 7,

28

2007. Defendants will redact confidential and privileged information as appropriate. 30 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1 2

Document 277-2

Page 219 of 245

REQUEST FOR PRODUCTION NO. 73 Any and all DOCUMENTS RELATING TO tissue disposal records for skull-flaps from

3

January 1, 2006 to the present.

4

RESPONSE TO REQUEST NO. 73

5

Filed 12/01/2008

Defendants object to this request to the extent it requests documents that contain

6

information that is confidential under HIPAA. Defendants also object to the extent that it

7

requests documents that contain privileged peer review information. Without waiving these

8

objections Defendants will produce all documents responsive to this request by December 7,

9

2007. Defendants will redact confidential and privileged information as appropriate.

10

REQUEST FOR PRODUCTION NO. 74

11

Any and all DOCUMENTS RELATING TO audits of Kern Medical Center’s Pathology

12

Department by outside consultants, including but not limited to Dr. Stacey Garry, from October

13

24, 2000 to the present.

14

RESPONSE TO REQUEST NO. 74

15

Defendants object to this request to the extent it requests documents that contain

16

information that is confidential under HIPAA. Defendants also object to the extent that it

17

requests documents that contain privileged peer review information. Without waiving these

18

objections Defendants will produce all documents responsive to this request by December 7,

19

2007. Defendants will redact confidential and privileged information as appropriate.

20

REQUEST FOR PRODUCTION NO. 75

21

Any and all DOCUMENTS RELATING TO Kern Medical Center laboratory personnel

22

defections from June 14, 2006 to the present, including but not limited to exit interview notes.

23

RESPONSE TO REQUEST NO. 75

24

Defendants object to this request on the grounds that it is vague. Defendants do not know

25

what “personnel defections” means. If Plaintiff intends to request a list of employees who have

26

separated from County employment or transferred out of the laboratory, Defendants can prepare

27

such a list but Defendants believe such a list will need to be redacted to remove confidential

28

personnel information. Defendants will produce a list of employees who have separated from 31 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 220 of 245

1

County employment or transferred out of the laboratory by December 21, 2007 and will redact

2

the information as appropriate.

3

REQUEST FOR PRODUCTION NO. 76

4

Any and all DOCUMENTS RELATING TO dictation transcription logs for Plaintiff

5

from June 14, 2006 to the present.

6

RESPONSE TO REQUEST NO. 76

7 8 9

Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 77 Any and all DOCUMENTS RELATING TO dictation transcription logs for Dr. Philip

10

Dutt from June 14, 2006 to the present.

11

RESPONSE TO REQUEST NO. 77

12 13 14

Defendants will produce all documents responsive to this request by December 7, 2007. REQUEST FOR PRODUCTION NO. 78 Any and all DOCUMENTS RELATING TO placental evaluations conducted by Plaintiff

15

from June 14, 2006 to the present.

16

RESPONSE TO REQUEST NO. 78

17

Plaintiff has attempted to narrow this request but the revised request is broader, more

18

burdensome and less calculated to lead to the discovery of admissible evidence than the original

19

request. Defendants object to it for that reason. Defendants object to this request because it is

20

not reasonably calculated to lead to the discovery of admissible evidence and is burdensome.

21

Defendants also object to this request on the grounds that it seeks information that is shielded

22

from disclosure under HIPAA. There are thousands of placental evaluations for the time period

23

specified and they are not centrally filed or maintained. Locating ones conducted by Plaintiff

24

will require writing a computer program that will sort the files. After the files are sorted, it will

25

require a manual review of each file to find the placental evaluation. It will have to be copied

26

and redacted and copied again. Defendants estimate it will take approximately 90 days to

27

comply with this request. Without waiving these objections, Defendants will attempt to locate,

28

copy and produce the documents requested 32 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

1 2 3 4

Document 277-2

Any and all DOCUMENTS RELATING TO Golden Empire Pathology Associates. RESPONSE TO REQUEST NO. 79 After diligent search, Defendants’ have not been able to locate any documents that are responsive to this request.

6

REQUEST FOR PRODUCTION NO. 80

8 9 10

Page 221 of 245

REQUEST FOR PRODUCTION NO. 79

5

7

Filed 12/01/2008

Any and all DOCUMENTS RELATING TO Golden Empire Medical Group. RESPONSE TO REQUEST NO. 80 After diligent search, Defendants’ have not been able to locate any documents that are responsive to this request.

11 12 13 14

Dated: November 20, 2007

LAW OFFICES OF MARK A. WASSER

15 16 17 18

By:

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

19 20 21 22 23 24 25 26 27 28 33 DEFENDANTS’ RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

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

Document 277-2

Filed 12/01/2008

Page 222 of 245

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

EXHIBIT 18

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

23

CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Case 1:07-cv-00026-OWW-TAG Document 277-2 Filed 12/01/2008 Page 223 245Care Code Section 1157. Further protections are afforded the quality management and performance improvement processes under the of Health Quality Improvement Act of 1986 (P.L 99-660).

.KERN

~•

JOINT CONFERENCE COMMITTEE MEETING MINUTES September 10, 2007

MEDICAL

CENTER

Attendance Record:

Call to order: 12:10 p.m. J

M

J

J

A

P P Supervisor Don Maben* P - P Supervisor Ray Watson* P P P - P Paul J. Hensler, CEO* - P P Toni Smith, R.N.* P P - P Eugene Kercher, MD * P P P - P P P Scott Ragland, DO * P P Jennifer Abraham, MD* - Fred A. Plane, CFO P P P Ron Errea, CAO - P *Votmg Committee member. Guests: Karen Barnes, Chief Deputv County Counsel ITEM CONCLUSION

P P P P

-

P E

P P P P P P

-

-

P

P

-

1. Call to order

2. Approval of

F

-

-

M

Adjournment: 1:30 p.m.

A

-

-

-

-

-

-

-

S

4. President Elect/Past President Eugene Kercher, MD

N

D

P P P E P P P P P

Dr. Kercher announced that Jennifer Abraham, M.D. has been appointed as the President-Elect of the medical staff. Therefore, the meeting was called to order at 12:10 p.m. by Dr. Abraham as Dr. Ragland was going to be late. The minutes from July 9, 2007 were approved as written.

minutes from June

11,2007 3. Board of Supervisors

a

ACTION! FOLLOW-UP

M/S/C to

approve minutes

Supervisor Maben commented that the contract with SEIU has been ratified by the members and it will go to the BOS in the near future. The Medical Executive Committee had recent discussion on placement of patients and this is a work in progress. They are working diligently on the credentialing piece, proctoring of folks immediately without waiting, following the bylaws so they are in compliance with the law - Dr. Abraham is personally welcoming the opportunity for improvement. KMC had a local doctor who worked Friday and Saturday to work on proctoring the current anesthesia group. We brought in locum tenens because we don't have anything in place to proctor locum tenens. We will put something in place for this to not happen in the future. This was a learning experience. Both Drs' Kercher and Abraham will fix this. On the positive side, when the locum tenens came and there were issues, there was a process put in place for them to be ALS certified, etc. Paul has not been pleased how Somnia is handling this. The chair they appointed did not like the way KMC told them that they cannot proctor, it must be done outside of Somnia. They are still to this day not being friendly about this issue. They think they can choose their own proctor. They need to have six cases proctored. Once the first three doctors are proctored, then they can proctor the rest. There is a perceived conflict of interest if we are proctoring these three and they can proctor the remaining. If these 3 cannot pass the proctoring, they cannot proctor the remaining. Dr. Abraham's been told the experienced anesthesiologists are on call in the evening and the weekends. Maybe our proctorer can come in for a whole week to proctor all of them. Paul said that we're asking CMS to come back on Friday to do a re-survey. It would be great if we can show these three physicians have been proctored. Supervisor Watson said that the most important thing is for Somnia to know who's in charge and it's not

0009919 0009919

CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Case 1:07-cv-00026-OWW-TAG Document 277-2 Filed 12/01/2008 Page 224 245Care Code Section 1157. Further protections are afforded the quality management and performance improvement processes under theof Health Qualitv Improvement Act of 1986 (P.l. 99-6601.

5. Psych Issues Paul Hensler

them. The hospital can reject their Chair and two physicians without cause. The appointment of a chair requires approval of the CEO and the hospital has the opportunity to reject two doctors per year, for any reason. If things don't shape up, we'll need to talk with the MEC about it. The first thing we should do is reject the Chair. The rejection should come from the MEC, but can come from the CEO. Psychiatric issues have been longstanding. Issues revolve around 5150s that have been escaping and the fact that we're holding them because we don't have beds to move them into. The State has visited us over the year. The Mental Health department became concerned. Paul had one meeting with them, they wanted us to move them to beds, we couldn't do this without going through the right channels. Paul said patients are better off if we're closed and the MH advocate agreed. The MH advocate filed complaints with the state, they saw us in between a rock and a hard place, he made 5 complaints that were unsubstantiated, then he made 2 more, they came out and did a review, and that put us in "immediate jeopardy." The Feds came in on 8/30 and did a survey, they found credentialing errors and our plan of correction had not been carried out. The psych portion is the facility capacity, we are using a portion of ER for emergency psych (EPAC) and upstairs for in-patients. ED is over-crowded, we don't have the proper facility, making it easy for escapes. They end up spending more than 24 hours downstairs, sometimes more than a few days. A lot of their findings were surrounded around capacity issues, not protecting patient privacy, safety issue of escape and employees. We failed to organize the emergency services under a qualified medical director. By running two operations down there, communications broke down. The MH people are trying to contract for more services, including Good Sam who has 10 beds. We put ED under Dr. Kercher and Dianne McConnehey's control to do what must be done. Since then, we've had no elopements. One is controversial, we are to divert ambulance traffic once we don't have capacity. We are to the point we are doing everything we can do. We will submit a final report, they return in two days to determine if we are sufficiently in compliance to remove the fast track. They gave us until 9/30, then they can cease Medicare funding. The backup is to schedule a Belienson Hearing to terminate psych patients at the hospital. If everything we have done is not effective and they are ready to pull our funding, we are better to terminate psych services rather than having the whole ship come down. Where the patients would go is the problem. We hope not to do it, but we can't survive on 25% of what Medicare pays us. A lot of local people would have to go out of the area. We are seeing families dropping off Grandma because they can't care for her anymore. We must bring a lot of the county services together for these populations. Supervisor Watson asked what it would take to license beds upstairs. That's not feasible. We are not making headway in the MKS bldg. Dr. Kercher said the MKS bldg would be perfect. It's solid, stone, you can add stories to it and the ED is close by. He doesn't know what the obstacles are, but possibly the current occupants don't want to give it up. Dr. Kercher has been talking about this for two years. Supervisor Watson said that he, Ron Errea and Supervisor Maben need to talk with Diane Koditek. Dr. Kercher said that would be a huge unloading from our ED if patients could be done at MKS. Paul said that another immediate thing we can do it to take some of the 2C rooms and convert them to in-patient rooms, 4 per room, 2 staff members per 4 patients. Ron Errea said that Paul and Fred are working with Diane on a MH contract for provider beds with Good Sam. Good Sam seems to recognize that we are over a barrel and may take advantage of that financially. Should that fall through, we may have to move patients out of the county to address the problem. This is not a preferred option. The county will get stuck with the transportation tab if we go out of county. It might be better to pay what we have to and work hard to not utilize them more than we have to. Paul

0009920 0009920

CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Case 1:07-cv-00026-OWW-TAG Document 277-2 Filed 12/01/2008 Page 225 of 245 Code Section 1157. Further protections are afforded the quality management and performance improvement processes under the Health Care Qualitv Improvement Act of 1986 (P.L. 99·660\.

6. OB Issues Paul Hensler

7. Adjournment

Hensler said that we are also looking at construction of a free-standing facility. General Services is looking at property and an architect to see the feasibility. It can be done in 18-24 months. A better payer mix can come out of that also. Although we are focusing on psych, capacity issues will hit us in other areas as well, Le., trauma issues. Dr. Yoo has also shared an IDT team that comes in to help facilitate discharges. Good news in OB. Dr. Wallace has done a good job getting discipline. The RRC Survey was done recently and there was a lot of concem from the residents who are being torn in the middle, but interviewing residents they are in support of the changes Wallace has imposed. Somebody had broken into the residency coordinator's office, vandalized the computer and monitor. When Dr. Wallace announced he wanted the place fingerprinted, Dr. Perez went and put his fingerprints on everything. Dr. Wallace decided to write it up as disruptive physician, it then went to MEC, they decided it was beyond them. Regarding the chainnanship issue, Karen is renegotiating a new contract. The problem is is that he can appeal. Dr. Kercher said that he and Dr. Ragland got together with Dr. Perez and Perez denied the significance of the issue. Dr. Perez said that "when Lascano leaves, I'll be next." MEC recommended the three of them meet with letters of concern. Dr. Kercher was impressed that the secretaries confinned that he did touch the computer. MEC made a decision to not get into a political fight, and for Karen to write a letter of reprimand. The DA's office is investigating the incident. Investigator met with Dr. Wallace and will come back to meet with secretarial staff this Thursday. Can this be used to get Perez out of chainnanship? This is concerning that the CEO does not have the authority to decide who is going to chair a department. The problem is we have tied a portion of the chair's compensation to that position, that is a property right. Dr. Perez is entitled to due process hearing for this reason. Karen proposes drafting a policy similar to the Faculty Practice Plan that will give him the opportunity to ask for a hearing, with the CEO having authority over the outcome. What if we give him additional clinical duties for the money we are giving him as chair? The appeals process needs to go into effect immediately. How can we legally give the CEO more authority to hire and fire chairs. We need to get out of this problem. Karen Barnes is looking into this. Contract given to recruiter for pennanent chair position and Dr. Wallace is interested. Selection committee is directed by the Bylaws. Except for the property rights issue, everything else will be governed by the Medical Staff Bylaws. The appeals process should be completed within the month, putting it on the fast track. The meeting adjourned at 1:30 p.m. The next meeting is scheduled for October 8,2007.

Submitted by:

~

Scott Ragland, D.O. Chairman abra Minutes recorded and transcribed by Arlene B. Ramos-Aninion, Office Services Coordinator

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27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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to changes in job requirements, increase the effectiveness of supervision and management, and improve employee-management relations through increased understanding of organization objectives. Continuing education programs are subject to the provisions in Chapter 3. 136. Performance Evaluations. Employee performance evaluation reports are submitted to the Personnel Department at the three and six month probationary dates, and annually on the hiring anniversary date. For those etnployees subject to a twelve month probationary period (Fire Fighters, Sheriff's Deputies, and Park Rangers), evaluation reports are filed at three, six, nine and twelve month intervals from date of hiring, and thereafter annually on the hiring anniversary. The evaluation foIm, which specifies the due date, will be sent to each department head approximately two pay periods in advance. Those performance evaluations that are completed by a department or agency head are submitted to the County Administrative Office for review. The affected employee may meet with the County Administrative Officer to discuss the evaluation

.1 Process. The mechanics of the performance evaluation are explained in the Rater's Guide for Employee Performance Reports. Department heads are to ensure the employees are counseled on their performance. The employee's signature is required on the report. An employee who disagrees with the rating may file a written statement of reasons within 30 days after the date the evaluation is prepared. This statement must be signed by the employee and department head, and attached to each copy of the rating form. .2 Record Maintenance. The Personnel Director maintains records of evaluation ratings for use in promotional examinations, determining order of layoff and reinstatement, and for recommendations relating to transfer, demotion, and removal. The department retains a copy for the employee's file. .3 Tennination. A performance evaluation report must be completed when employment is terminated, including retirement. These reports may be used if reinstatement or reemployment is considered. 137. Special Performance Evaluations. A special performance evaluation should be completed when a change ofraters occurs within an annual cycle and at any time for commendation or disciplinary action. 138. Service Awards. The Personnel Department will send a packet containing the employee's name, service length, and a catalogue from which the employee may select an award. Service awards are presented upon 10, 20, 25, 30 and 35 years of service and are recommended to be presented to the employee by the department head during a department meeting.

.1 Board of Supervisors' Resolution. Employees receiving a 25 year service award and employees retiring with 25 or more years of service will receive a Board of Supervisors Resolution. A request for Resolution should be placed on the departmental sub-agenda. Public presentation of the Resolution is at the option of the employee. .2 Retiring Reserve Deputy Sheriffs. A reserve deputy sheriff retiring after 15 or more years of service will receive a retirement badge or other suitable item in recognition of the deputy's meritorious service. The design, engraving, and type and manner of presenting of the badge is at the discretion of the Sheriff, except that the badge must clearly show that the bearer is not a County employee or a reserve deputy sheriff. 139. Disciplinary Actions. Any employee may be dismissed, suspended, reduced in rank and/or compensation, reprimanded or otherwise disciplined for any action or conduct which in the judgment of the appointing authority provides good cause for discipline under the Civil Service Rules or other laws, regulations, or policies. Civil Service Rule 1700 et. seq. specifies the procedures for dismissal, suspension or reduction in rank or compensation for employees in the classified service.

.1 County Counsel Review ofProposed Disciplinary Action. The department head must consult with County Counsel prior to any suspension without pay, demotion, compensation reduction, or termination. County Counsel will evaluate the merits of, and evidence to support, the disciplinary action and make a recommendation. County Counsel, as a rule, will not represent a department before the Civil Service Commission unless that office has been afforded an opportunity to make a thorough assessment of the discipline case before the disciplinary action is commenced by the issuance of a notice of proposed action letter (i.e., Skelly

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letter) by the department. If County Counsel determines that the proposed disciplinary action is warranted, it may represent the department in disciplinary actions before the Civil Service Commission.

.2 Reprimand. Reprimands may be verbal and/or written, and in caSes where the reprimand does not require any action of dismissal, suspension, or compensation or rank reduction for employees in the classified service, the department head is not compelled to follow the Civil Service Rule 1700 procedures. A performance evaluation report, or formal written memorandum or letter should be used in cases of reprimands to provide a permanent record of the cause of the disciplinary action, discussion with the employee, time limits for correction of the problem, suggestions for improving performance, and any other related items. The completed report, memorandum, or letter should be forwarded to the Personnel Department and a copy placed in the departmental file. The employee may file a written response within 30 calendar days of the date of reprimand.

.3 Demotion-Step Level. An employee who is demoted for disciplinary pmposes from one class position to another class position with a lower pay range shall receive the step level compensation determined by the department head unless otherwise established by the Civil Service Commission after an appeal of the disciplinary action. The anniversary date of the employee will not change. .4 Compensation Reduction. The department head may, for disciplinary purposes, reduce an employee's compensation without a demotion to a lower classified position by ordering the employee's step level changed to a lower step level.

.5 Voluntary Demotion. Any employee who takes a voluntary demotion from one class position to another class position, with a lower range of pay, shall receive a step level compensation agreeable to both the employee and the Department. The employee must have permanent status with the County prior to the demotion and will demote with permanent status. The anniversary date of any employee so demoted shall remain the same as it existed prior to his/her demotion. .6 Administrative Leave with Pay. A department head may place an employee on administrative leave with pay if the department head determines that the employee is engaged in conduct posing a danger to County property, the public or other employees, or the continued presence of the employee at the work site will hinder an investigation of the employee's alleged misconduct or will severely disrupt the business of the department. During the administrative leave, the employee shall be ordered to remain at home and available by telephone during the normally assigned work day. A department head may, if necessary, adjust the employee's work schedule to provide availability during normal business hours, Monday through Friday, 8:00 AM to 5:00 PM. A department head may not order an administrative leave with pay for a period in excess of five assigned workdays within a single pay period without the written authorization of the Employee Relations Officer in the County Administrative Office. Changes in duty status following the issuance of a notice of proposed action are as provided in Civil Service Rule 1700 et. seq., not this section. 140.

Hearings and Appeals.

.1 Suspension, Demotion, Compensation Reduction, or Termination. A permanent employee is entitled to appeal a suspension, compensation reduction, demotion, or termination as a disciplinary action to the Civil Service Commission. .2 Step Level Increment Denials. Any employee who has not received a step level advancement as provided in section 110 because of the refusal or failure of the employee's department head to recommend such advancement or because of the refusal or failure of the Personnel Director to approve such advancement, may appeal to the Civil Service Commission for a hearing on the question of the right of the employee to receive such step increase by filing a written appeal with the Personnel Director. The Commission shall set and conduct a hearing on the matter in due course in accordance with its rules, policies and practices. Within 10 days of the conclusion of the hearing the Civil Service Commission shall determine whether or not the appellant has capably and conscientiously performed the duties of his position for the period

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of one year immediately preceding the employee's anniversary date, and whether or not the failure or the refusal of the department head or the Personnel Director to approve the step level increase was arbitrary or unreasonable. The decision of the Commission shall be fmal for all purposes. .3 Salary Range Adjustment Denial. Whenever the salary range for a classification is adjusted, and the department head determines under section 109.6 that there is cause not to grant the compensation increase, the department head may deny the raise to the employee and may place the employee at a step level within the salary range for the position which most closely corresponds to but is not less than the compensation that the employee was receiving prior to the salary range adjustment for the position. The employee may appeal the department head's decision to the Civil Service Commission, which shall here the matter in accordance with the procedures and rules for reductions in compensation generally. .4 Performance Evaluation Reports. Performance evaluation reports represent the judgment and opinion of the department head with respect to an individual's performance on the job and are not subject to a formal appeal and hearing.

141. Physical Examinations. An employee may be required at any time to take a medical, physical, and/or psychological examination to determine whether the employee meets the medical and physical standards prescribed for the position. The department head or the Personnel Department may request an examination. 142. Conflict of Interest. Ordinance Code Chapter 2.02 establishes the policy and procedures relating to activities of officers and employees that are inconsistent, incompatible, or conflicting with the duties of public office or employment. Department heads are responsible for developing "regulations determining and prescribing employments, activities, and enterprises which are prohibited as being inconsistent, incompatible or in conflict with their duties as employees." Each employee must sign and date a statement that he/she has read, understood, and is in compliance with the Ordinance Code and the departmental regulation relating to conflict of interest. The department maintains an internal file of its employees' statements. 143. OvetpaymentlUndetpayment of Wages or Benefits--Correction. If an administrative error results in an employee receiving payment for wages or benefits in excess of that legally due, the employee will reimburse the County. Corrections are initiated by completion of a Request for Correction of Payroll form signed by the department head and the employee which the department shall forward to the Personnel Department for review and approval. The Personnel Department shall forward the form to the Auditor-Controller-County Clerk for approval and processing. The correction will be by one or more of the following methods as deemed appropriate for the circumstances by the Auditor-Controller-County Clerk: 1.

Repayment in cash, net of taxes, in full or by a fixed installment plan agreed to by the employee and the Auditor-Controller-County Clerk;

2.

Repayment in full, deducted from the next payroll warrant issued to the employee;

3.

Repayment by the reduction of accumulated vacation hours and/or compensatory time off hours by the number of hours calculated to produce a dollar amount, net of taxes, to repay the County;

4.

Repayment by fixed installment deductions from sequential payroll warrants, with the number and amount of installments to be determined by the Auditor-Controller-County Clerk, with due consideration of the amount of the overpayment and the amount of disposable earnings available to the employee; or

5.

Any combination of the above, as mutually agreeable to the employee and the AuditorController-County Clerk.

If, as a result of an administrative error, any employee of the County receives payment of monies or benefits less than that legally due, the County will reimburse the employee by one or more of the following methods:

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EXHIBIT 20

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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March 12, 2002

Jose Perez Jr., MD President Medial Staff 1830 Flower Street Bakersfield, CA 93305

RE: Corrective Action Investigation Special Meeting Report Dear Jose Perez Jr., MD,

~

&>rrective~tion~

Pursuant to Kern Medical Centers, Medial Staff Bylaws articl£ 7.I-3;r;vestigation5'a special meeting was convened upon receipt of a compliant from" Elsa P. Ang, MD, agaiJ:t.sl David Jadwin,DQ, Chair of the department ofPatbology._'~ meeting was held on March 11, 2002 chaired by 'myself Chief Medical Officer, Jose Perez, Jr., MD, President ofthe Medical Staff, Royce Johnson, MD, Past President of the Medical Staff, Navin Amin, MD, President Elect of the Medical Staff, J~m~.~p.f2\lI, MD, secretary treasure of the Medical Staff, and Mr. Peter Bryan, CEO;,~ allegations -were itptified in the Febr;uary 20, 2002 letter to Jose Perez, MD from Elsa P. Ang, MD. Ther~ ~ aUegatio~~fraudulent billing in the department ofPathology;'a pathology assistant engaging in the practice of medicine without a license; ~t David Jadwin, DO, failed a quarterly proficiency test on cervical pap smears', and that David Jadwin, DO, engages in frivolous spending by sending work outside of the laboratory.

;4

After thorough investigation of all documents submitted by both parties and after extensive interviews with both physicians, David Jadwin, DO, Chair of theJlepartment of Pathology and Elsa PAng, MP, <:0II:1plaj!!anj. frhe f()~lo_\\Ti!lg c()nclusions ~c:~ unanimously concluded./,Fraudulent biJlin~lJ.o eVidence of fraudulent billing could be ,.- id~ntified.J Pathology.assistant. en~g-mgjnr.-~e ~~!~c~!If Predicine withou! a license; dO,: .'.. eVIdence to support this allegatlOn,""f: the pathology asSIstant P,;:' ,: "' 1.-"'(::;"-:~; , j"" wor~ undefdefmed pr~tgcol approved by the department~~l}.!!Yff;T a;ear ago! The :r-if';~\;in;': quarterly profici:ncy tests'n"ot ~wa~~~oJ?~te)~dgment as ili'ejPi-oe:e~~~ i~ e,l~c: by the " College of Amencan Pathologlst ~Ys mdlvIdual pathology vanatIon but.ffie eIghty percent requirement is for the entire laboratory service at KM<; for which~~lias been compliant for years.'1Frivolous spending outside of the department; fib inappropriate expenditures have been identifieJ!JU1d as per the contract David J~win, Mo, has complied by no payments made'~ his personal reference lab and'n~ payment has been· verified.

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with~cle fJJ~n th~

In conclusion;the committee in compliance of Kern Medical Center bylaws 7.1-3j'nvestigation and 7.1-4 Executive~ommitteei'3ction, the recommendation is No corrective action. Complete documentation of the detailed investigation is in the Medial Staff office.

Sincerely,

Marvin o. Kolb, MD Chief Medical Officer

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Minutes from investigation

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Minutes from the Investigation of the allegations-£.Elsa P. Ang, MD against David Jadwin, DO, Chainnan of the department of Pathology. " I . . . . . , • This investigation is iiitd¢{i~' ~pMis ~~ h;fa~si~i~l~ ~'c!Orrective Action 7.13)nvestigatiom This investigation was convened within fifteen business days and included the officers of the Medical Staff, Chair of the department involved, Medical Director, and the CEO. Present at this meeting,Peter Bryan, CEO, Jose Perez Jr., MD, President ofthe Medical StatI, Royce Johnson, MD, Past President of the Medical Staff, Navin Amin, MD, President Elect of the Medical Staff, James Sproul, MD, Secretary treasure to the Medial Staff, and Marvin O. Kolb, MD, Chief Medical Officer. During the investigation both David Jadwin,~, Chair of Pathology and Elsa P. Ang, MD were ~tensively interviewed at separate times.. I (f Compliant #1 fraudulent ~?lIing. .,di.;/ ~u';.~': . Numerous documentationi!~.d the complainant identified billing code 88342 for an examination and interpretation ofa~inoperioida1e strain<;d by a pathologist which David Jadwin, MD, Chair of Pathology had'asked the Pathologist to continue to bill for even though the service was discontinue4{in~'April of2001. As identified during our i~vestigati0I)the ~eason for ~s conti?ued bill~g by KMC ~s because KM~ .is being ,f , .'./ bIlled by the outSIde PatholOgIst that IS now domg that servIce - therefore It IS past_ 'hv~{;"VP; billing. Th~=mvestigation p~s did identify that this pass through process needs to be . reevaluated to ensure that aU proper billing procedures and past due activities are " consistent and appropriate. Di' ;~(,.; .,_~'i. . ... " i . , " ,,' I c.' {' . Conclusion: No evidence of fraudulent billing was identified. The complainant also expressed':~etibe CPT cod~PYth~t'a13innanof the department. This was a process put into place by the Cha}~~~~.~~(~er~;~!,f?llRw3~~,~~ ~.; rl discussion with the individual members and;qt a;e department 'meetings~ • ~ deparim~~ with the intent being consistent and appropriate coding1Woc~intation.~~~fb[,thup codes and down codes and code changes involving all department members. The complainant did state, "She did not have any problems with the changing ofthe codes" but was more concerned with the fraudulent billing regarding compliant # 1. .. . fall-the documentsthecomnrittee telfthere--was-no ... evidenceofnaudulent·billing. CQ!l.f~fm~~at.fue.1>athologydepMtmeitt nee
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requisition cards for all placenta's first in order to identify those placenta's which Angie should or should not gross' and 'placenta's associated with f e t a l . should be completed by the pathologisf'. \ Conclusion # 2: After revieWQ,f the policy, which ha$. been discussed by the department in March of200]1fie'dis~U'~sibn ~ in variouS,fueetings it appears there was no evidence to substantiate the allegation that the pathology assistant was working beyond the scope ~fined in the policy. " ,_ ,/ Allegation #3 ./ David Jadwin, DO, failed to pass quarterly proficiency tests on cervical pap. The allegation was the other three Pathologist had maintained proficiency. The College of American Pathologist provide a service that KMC has participated in whereby quarterly cervical pap smears are forwarded to Pathologist for review. We were given by Elsa P. Ang, MD one quarters reports which showed David Jadwin, DO at sixty percent and two of the other pathologist at eighty percent and one with one hundred percent. Not included in Elsa P. Ang, MD, packets were two other quarter reports from 2001 which identified variations; one quarter all ~!hologist scored between eighty and one hundred percent and another quarter showed ':!Pathologist (not David Jadwin, DO, or Elsa P. Ang, MD) at only twenty percent. The issue is the cervical pap survey given by the College of American Pathologist is a continuing education process for the pathologist.amt1Jie eighty percent complianc~ is for the entire lab-~ KMC has been in compliance with over eight percent during thtd'it-ation , of the testing by CAP. It also ShR}~~~')b~p5}tej that since KMC has only a~proximately i}" five thousand pap smears a year ~prohciency of close to ten thousang ~s needed for continued competenc, so- therefme the service has been out sourceg{~dlh~s this CME i'~' activity with the College of American Pathologist will be discontinued. Conclusion # 3: Misinterpretation ofthe data,Ho evidence of deficiency in proficiency testing from the College of the American College of Pathologist were identified. Allegation # 4: David Jadwin, DO, Chair of Pathology engages in frivolous spending by _ spending work to outside laboratories when not necessary. This allegation-thaHhere i-:-;O:;{;-! -- .,: :.' were a few cases that were sent out to other Pathologist for evaluation, a process that has been ongoing at Kern Medical Center forever. The allegation that David Jadwin, DO , .,:.,- sent this to his private laboratory in New Jersey, Lakewood Pathology Associates for a -~:'\~. remu,nira-tion was unfounded. We documented no payments to David Jadwin, DO, Lakeview Pathology Lab, nor was if felt the referrals to outside Pathologist were ~~"\.\,\· ..lL;: '.-f i inappropriate. However there were a few de.:m•..,1 path slides!to Lakewood pathology tt/ j done without charge by~the lal>O~atory pn-DtnioWudw4h, ~fBf¥CCf8C9t: '.IJ;.:_" -';,', ,_ Conclusion # 4: Allegations regarding outsid~ ~~fe.JElI\V.o~~~~not s!l:bstantia~· \ " ',' /~ The conclusion of our investigation incompliance with,&-ticle ~ of the Kern Medical ,'- tj !,~ '" ,,' Center 'Bylaws for correctivelclctionJti~estigation7.1-3·b.ecutiveComrnittee$ivestigation 7.13-4', our.;\:;e~~iiimendation iii A. no correction actionindicated. A'

:,!:-'.

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Marvin O. Kolb, MD Chief Medical Officer

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,. , ..

ARTICLE VII CORRECTIVE ACTION

7.1

ROUTINE CORRECTNE ACTION

7.1-1

CRITERIA FOR INITIATION

Whenever a practitioner with clinical privileges shall engage in, make, or exhibit acts, statements, demeanor, or professional conduct, either within or outside of the Medical Center, and the same is, or is reasonably likely to be, detrimental to patient safety or to the delivery of quality patient care within the Medical Center, to be disruptive to Medical Center operations, or to constitute fraud or abuse; or the same results in the. imposition of sanctions by any governmental authority, and investigation or corrective action against such person may be requested by any Medical Staff member, by the Board, or by the Chief Executive Officer.

7.1-2 INITIATION Proposed corrective action, induding a request for an investigation, must be initiated by the Executive Committee on its own initiative or by a written request which is

submitted to the Executive Committee and identifies the specific activities or conduct which are alleged to constitute the grounds for proposing an investigation or specific corrective action. The President shall promptly notify the Chief Executive Officer and Board of all proposals for corrective action so initiated and shall continue to keep them fully informed of all action taken in conjunction therewith. Complaints regarding a member of the Resident Staff shalf be made to the Medical Director who may, if necessary, convene a special meeting of the Education Committee.

7.1-3 INVESTIGATION Upon receipt of a written complaint, the President of the Medical Staff in order to cause such complaint to be investigated shall thereupon convene within fifteen (15) business days a special meeting of the elected officers of the Medical Staff, the Chair of the Department involved, the Medical Director, and the Chief Executive Office, to which the member in question shall be requested to attend. No such investigative process shall be deemed to be a 'hearing" as described in Article VIII. 7.1-4

EXECUTIVE COMMlITEE ACTION As soon as is practicable after the conclusion of the investigative process, if any, but in any event within twenty (20) business days after the initiation of proposed corrective action the above Committee shall make a report of findings together with appropriate recommendations of action to the Executive Committee. The Executive Committee may forward to the Board, through the Chief Executive Officer, their own recommendations as to action to be taken, if any.

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Such action may include, without limitation, recommending: a. b. c. d. e. f. g. h.

i. j.

No corrective action. Rejection or modification of the proposed corrective action. Letter of admonition, letter of reprimand, or waming. Terms of probation or individual requirements of consultation. Reduction or revocation of dinical privileges. Suspension of clinical privileges until completion of specific conditions or requirements. Reduction of membership status or limitation of any prerogatives directly related to the practitioner's delivery of patient care. Suspension of Medical Staff membership until completion of specific conditions or requirements. . . Revocation of Medical Staff membership. Other actions appropriate to the facts which prompted the investigation.

Nothing set forth herein shall inhibit the Executive Committee from implementing summary suspension at any time, in the exercise of its discretion pursuant to Section 7.2. 7.1-5

PROCEDURAL RIGHTS

OTHER ACTION a.

b.

c.

I

I I I I I I

Any recommendation by the Executive Committee, pursuant to Section 7.1-4 which constitutes grounds for a hearing as set forth in SeCtion 8.2 shall entitle the practitioner to the procedural rights as provided in Article VIII. In such cases, the President shall give the practitionerwritten notice of the adverse recommendation within seven (7) calendar days of such an adverse recommendation and of hislher right to request a hearing in the manner specified in Section 8.3-2. 7.1-6

I

I (

I

If the Executive Committee's recommended action is to recommend no corrective action, such recommendation, together with such supporting documentation as may be required by the Board, shall be transmitted thereto. Thereafter, the procedure to be followed shall be the same as that provided for applicants in Sections 3.8-6, 3.8-7 and 3.8-8, as applicable. If the Executive Committee's recommended action is an admonition, reprimand, or waming to a practitioner, it shalt, at practitioner's request, grant him/her an interview as provided in Section 7.4. Following the interview, if one is requested, if the Executive Committee's final recommendation to the Board is an admonition, reprimand, or waming this shall condude the matter when approved by the Board without substantial modification, and notice Of the final decision shall be given to the Board, Chief Executive Officer, Executive Committee, the Chair of each Committee concemed, and the practitioner. If any proposed corrective action by the Board will ·substantially modify the Executive Committee's recommendation, the Board may submit the matter tothe Joint Conference Committee for review and recommendation before making its decision final. Any recommendation of the Board which constitutes grounds fora hearing as set forth in Section 8.2,~hall entitle the practitioner to the p'rocedural rights as provided in Article VIII. In such cases, the Board shall 38

I I

I I I

I'

"I'

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"

give the practitioner written notice of the tentative adverse recommendation and of his/her right to request a hearing in the manner specified in Section 8.3-2. d.

Should the Joint Conference Committee determine that the Executive Committee's failure to investigate or initiate disciplinary action, is contrary to the weight of the evidence, the Joint Conference Committee may direct the Executive Committee to initiate an investigation or a disciplinary action, but only after consultation with the Executive Committee. In the event the Executive Committee fails to take action in response to a directive from the Joint Conference Committee, the Joint Conference Committee, after notifying the Executive Committee in writing, may take action on its own initiative. If such action is favorable to the practitioner, or constitutes an. admonition. reprimand or warning to the practitioner, it shall becOme effective as the finaJ decision of the Joint Conference Committee. If such action is one of those set forth in Section 8.2, the Joint Conference Committee shall give the practitioner written notice of the adverse recommendation and of hislher right to request a hearing in the manner specified in Section 8.3-2 and hislher rights shall be as provided in Artide VIII.

SUMMARY SUSPENSION

Wh ever a practitioners conduct requires immediate action to be taken to re ce any a sub ntial likelihood of imminent impairment of the health or safety 0 patient, spective patient, employee or other person present in th edical Center, an person or body authorized to initiate proposed co ve action pursuant to S ·on 7.1-1 hereof shall have the authority to summ y suspend or restrict the Medi Staff membership status or all or any Po n of the dinicat privileges of such ctitioner, provided, however, that Joint Conference cutive Officer, before the susp Ion or restriction, made Committee or· Chief suspension or restriction reasonable attempts to co ct the Executive Committe by the Joint Conference C mittee or Chief Ex·ve Officer which has not been two (2) working days, exduding ratified by the Executive C mittee withi weekends and holidays, after e susQ sion or restriction shall automatically ' terminate. Such summary suspension or immediatefy upon imposition, and the person or, dy responsibl therefore shalf promptly give oral or written notice thereof to e practitioner, Join Conference Committee, Executive Committee, and Chief ecutive Officer. The notice f the suspension or restriction Committee shall constitute a re est for corrective action and given to the Exec· cept that the procedures the procedures t forth in Section 7.1 shall be followed, set forth in S ·on 7.1 shall be completed as soon as practi . In the event of any suCh sus nsion or restriction, the practitioners patients whose atment by such be assigned practi . er is terminated by the summary suspension or restriction s e wishes to ther practitioner by the Department Chair or by the Chief of Staff. the patient shall be considered, where feasible, in choosing a substitute p ·tioner.

0000682

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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

EXHIBIT 21

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

26

CES Job Classfication Chang 'om Case 1:07-cv-00026-OWW-TAG

Document 277-2

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Change of Employee Status DEPARTMENT #

DEPARTMENT NAME

8997

KERN MEDICAL CENTER

I

DATE PREPARED

1211912003

SOCIAL SECURITY NBR

EMPLOYEE NAME

376-50-8 177

JADWIN DAVID F

JOB CLASSIFICATION CHANGES

I

EFFECTIVE DATE

1211312003 F

DEPARTMENT

TYPE OF CHANGE

Change of Salary

I

TYPE OF APPOINTMENT

Temporary I

CLASSIFICATION

BASIS OF

8997 KERN MEDICAL 0706 CHMNIPATHOLOGY- RANGE STEP SALARY UNIT RATE $10,679.43 $10,679.43 Biweekly CENTER C M 0

DEPARTMENT CLASSIFICATION RANGE STEP SALARY UNIT RATE BASIS OF 8997 KERN MEDICAL 0706 CHMNIPATHOLOGY0 S 1 1,021.08 $1 1,021.08 Biweekly CENTER C

I

TYPE OF WORK REQUIRED

-

A Full Time

I

EMPLOYEE'S EARNINGS WILL BE SUBJECT TO:

r

I I

SOCIAL SECURITY?

NO

I I

IF PART TIME, HOURS BIWEEKLY

SDI? RETIREMENT?

I

NO I

NO

I

TYPE OF RETIREMENT MEMBER

I

SPECIAL ALLOWANCE CHANGES ACTION PAY CODE TIMES PAID AMOUNT

DATE

SIGNATURE

ACKNOWLEDGMENT BY THE EMPLOYEE: 1 ACKNOWLEDGE AND CERTIFY THAT THE STATEMENTS ON THIS FORM ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE.

APPROVED

1 '

NOT APPROVED

Personnel Approval

Arrnida Smith +

Armida Smith

Barbara Lynch

I Date To ITS

12/19/2003 11:53:00 AM (Personnel ApprovedfAwaiting )

DFJ00247

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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

EXHIBIT 22

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

27

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AGREEMENT FOR EXPERT CONSULTING SERVICES

THIS AGREEMENT is made and entered into by and between the County of Kern, a political subdivision of the state of California (hereinafter "County"). and William J. Colburn, M.D.• an individual (hereinafter ·Consultant"). RECITALS

WHEREAS: (a) Resolution Number 87-706 by the Kern County Board of Supervisors empowers the County Counsel to contract for needed expert consulting services; and (b) From time to time. the County Counsel needs consulting services to defend against or reduce the risk of possible lawsuits against County; and

'e

(c) County has need for consulting services with respect to the manner and quality of care given to certain patients in the department of pathology at Kem Medical Center ("KMC"). and desires recommendations for how to care for such patients in the future; and (d) Consultant is willing and able to provide said services to County for the consideration and upon the terms set forth herein; NOW. THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: 1.

Services.

1.1 County agrees that Consultant is to render independent consulting services for the County Counsel. Consultant agrees to perform a quality assessment review of the KMC department of pathology. Said review will include review and evaluation of a selected sample of twenty-one (21) medical records including slides that relate to pathology findings of gynecologic oncology patients who were seen and treated at KMC. Consultant will provide KMC with a written report stating Consultant's findings and recommendations. 1.2 Consultant will at all times be a member in good standing of the medical staff of KMC and governed as such by the medical staff bylaws, rules and regulations. Consultant will be assigned to the advisory staff category.

2.

Fees and Expenses.

2.1 Consultant will be paid an hourly rate of Three Hundred Dollars ($300) per hour for medical records review, consultation and report preparation.

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Consultant will not be reimbursed for any costs incurred by Consultant in providing said services. 2.2 The maximum payable under this Agreement will not exceed Ten Thousand Dollars ($10,000). 3.

Payment.

3.1 Invoices for payment will be submitted in a form approved by County and list each service performed. Invoices will be sent to KMC for review and processing. Payment will be made to Consultant within thirty (30) days of receipt and approval of each invoice by KMC. 3.2 To ensure compensation is reported as paid to the proper party. Consultant will complete and execute IRS Form W-9 (Exhibit "A," attached hereto and incorporated herein by this reference), which identifies the taxpayer identification number for Consultant. 4. Representations. Consultant makes no warranty, ·either expressed or implied. as to Consultant's findings, recommendations, or professional advice except that the services or work product were performed pursuant to generally accepted standards of practice in effect at the time of performance. 5. Independent Contractor. Nothing in this Agreement shall be construed or interpreted to make Consultant anything but an independent contractor and in all Consultant's activities and operations pursuant to this Agreement, Consultant shall for no purposes be considered an employee or agent of County. 6. Authority to Bind County. It is understood that Consultant, in Consultant's performance of any and all duties under this Agreement has no authority to bind County to any agreements or undertakings with respect to any and all persons or entities with whom Consultant deals in the course of Consultant's business. 7. Non-disclosure of Information. Consultant shall not disclose, without the express written consent of County, any information relating to any patient records or any other information or documentation that has been submitted by County to Consultant pursuant to the services to be rendered pursuant to this Agreement. Upon request by County or in the event that this Agreement is terminated, Consultant shall immediately retum to County all records. documents and the like belonging to County. 8. Termination. County reserves the right \0 terminate this Agreement at any time or to discharge Consultant at any time. In the event of such discharge, County shall compensate Consultant for services actually rendered up to and inclUding the date of discharge. Consultant may terminate this Agreement at any time by giving written notice of termination to the County Counsel. 9.

Notices. The service and delivery of all notices and/or papers shall be

0026380

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deemed dUly and properly given or made five (5) days after being mailed via the U. S. Postal Service. postage prepaid and addressed as follows: To County: Counsel

B.C. Barmann, Sr.• County Counsel Attention: Karen S. Barnes, Deputy County Kern County Administrative Center 1115 Truxtun Avenue, Fourth Floor Bakersfield. California 93301

To Consultant:

William J. Colburn, M.D. Tarzana Regional Medical Center Department of Anatomic Pathology 18321 Clark Street Tarzana, California 91356

10. Assignment. Consultant shall not assign any right, title or interest Consultant rnay acquire by reason of this Agreement except upon first obtaining written consent of County. Subcontracting. Consultant may not subcontract any portion or the 11. services to be provided hereunder without the written approval of County. 12. Modifications. This Agreement may be modified or amended only by written agreement of the parties. No waiver or modification of this Agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the parties hereto. 13. Non-waiver. No covenant or condition of this Agreement can be waived except by the written consent of County. Forbearance or indulgence by County in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by Consultant. County shall be entitled to invoke any remedy available to County under this Agreement or by law or in equity despite said forbearance or indulgence. 14. Venue. If any party herein initiates an action to enforce the terms hereof or declare rights hereunder, the parties agree that venue thereof shall be the County of Kern, state of California. 15. Construed Pursuant to California Law. The parties hereto agree that the provisions of this Agreement will be construed pursuant to the laws of the state of California. 16. Captions. Paragraph headings in this Agreement are used solely for convenience and shall be Wholly disregarded in the construction of this Agreement. 17.

Time of Essence. Time is hereby expressly declared to be of the

0026381

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essence in this Agreement and of each and every provision thereof, and each such provision is hereby made and declared to be a material, necessary and essential party of this Agreement. 18. Officials Not to Benefit. No member of any governing body or government. nor any employee of County shall be allowed or permitted to benefit personally from any part of or performance under this Agreement. Conflict of Interest. The parties to this Agreement have read and are 19. aware of the provisions of sections 1090 et seq. and sections 87100 et seq. of the Government Code relating to conflict of interest of pUblic officers and employees. All parties hereto agree that they are unaware of any financial or economic interest of any public officer or employee of County relating to this Agreement. It is further understood and agreed that if such a financial interest does exist at the inception of this Agreement. County may immediately terminate this Agreement by giving written notice thereof. Consultant shall comply with the requirements of Government Code sections 87100 et seq. during the term of this Agreement. [Intentionally left blank]

0026382

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates indicated below. COUNTY OF KERN Office of County Counsel

Dated:

tl5 -/5'~(j (. B.C. Barmann, Sr., County Counsel "COUNTY"

William J. Colburn, M.D.

Dated:~b IA)d

By

('{gil.&--

11\0

"CONSULTANT"

AgreemeotCvlbum.050206

0026383

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

1 2 3 4 5 6

Document 277-3

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Page 1 of 191

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

DAVID F. JADWIN, D.O.,

12 13 14

Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

15

Defendants.

16 17

Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 I, Eugene D. Lee, declare as follows: 20 1.

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

21 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 22 counsel of record for Plaintiff David F. Jadwin in this matter. 23 2.

I am making this declaration in opposition to Defendants’ Motion for Summary

24 Judgment. I have personal knowledge of the matters set forth below and I could and would competently 25 testify thereto if called as a witness in this matter. 26 3.

Attached hereto as Exhibits are true and correct copies of the following documents:

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

1

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Exh. 1

Date 7/10/2006

Description Memo from Mr. Bryan to JCC re Recommendation of Demotion of Dr. Jadwin

2 3 4 5 6

8/14/2008 8/26/2008 1/9/2008 3/12/2008 10/21/2008

Deposition Transcript of Peter Bryan, Vol I Deposition Transcript of Peter Bryan, Vol II Deposition Transcript of David Jadwin, Vol II Deposition Transcript of David Jadwin, Vol V Deposition Transcript of David Jadwin, Vol VI

7

8/18/2008

Deposition Transcript of Former Supervisor Barbara Patrick, Vol I

8

4/16/2008

Deposition Transcript of Former Lab Mgr Gilbert Martinez

10

9

8/22/2008

Deposition Transcript of Former President Scott Ragland

11

10

8/25/2008

Deposition Transcript of Supervisor Ray Watson

11

8/21/2008

Deposition Transcript of Former CEO David Culberson

12

8/29/2008

Deposition Transcript of PMK Philip Dutt, Vol. I

13

8/28/2008

Deposition Transcript of Former COO Sandra Chester

17

14

9/4/2008

Deposition Transcript of PMK Eugene Kercher

18

15

6/29/2006

Letter from Lee to Barnes re Spoliation of Evidence

16

3/29/2007

Letter from Lee to Barnes re Spoliation of Evidence

17

11/20/2007 Defendants’ Responses to Plaintiff’s Request for Production, Set One

18

9/10/2007

1 2 3 4 5 6 7 8 9

12 13 14 15 16

19 20 21 22 23 24 25

19

Joint Conference Committee Meeting Minutes re Demotion of OB/GYN Chair Kern County Policy & Administrative Procedures Manual, Section 139 (Disciplinary Actions)

20

3/12/2002

21

12/26/2003 Change of Employee Status

26

CMO Marvin Kolb Memo to Jose Perez re Pathologist Elsa Ang Accusations

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

2

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22

5/15/2006

Expert Consulting Services Agreement, between Consultant William Colburn and Kern County

23

8/30/2006

Consultant William Colburn Report to Kern County re Review of Jadwin cases

24

8/13/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. I

5

25

8/27/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. II

6

26

5/3/2004

KMC FNA Consulting Project by UCLA Consultant David Lieu

27

8/18/2008

Deposition Transcript of Former President of Medical Staff Jennifer Abraham

1 2 3 4

7 8 9 10

28

Cancer Conference Presenter Guidelines

29

8/15/2008

12

30

10/19/2005 Exh. 202: Jadwin letter to Albert McBride, Cancer Conference Director re October Conference

13

31

11

Deposition Transcript of Former Cancer Committee Director Albert McBride

October Conference attendee feedback

14 32

11/9/2005

Oncology Conference attendee feedback of Savita Shertukde

33

8/25/2008

Deposition Transcript of OB-GYN Physician Joseph Mansour

34

Harris Memos to File re Mansour Behavior

35

5/10/2006 to 4/12/2007 8/19/2008

36

8/18/2008

Deposition Transcript of Chair of Surgery Maureen Martin, Vol. I

37

4/16/2008

Deposition Transcript of Histotech Evangeline Gallegos

38

4/19/2008

Deposition Transcript of Former CMO Marvin Kolb

25

39

2/26/2008

Deposition Transcript of Pathology Secretary Tracy Lindsey

26

40

2/26/2008

Deposition Transcript of Clerk Irene Lopez

15 16 17 18 19 20 21 22 23

Deposition Transcript of Nurse Executive Antoinette Smith, Vol. I

24

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

3

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41

12/6/2007

Deposition Transcript of Radiology Chair Javad Naderi

42

12/6/2007

Deposition Transcript of Cancer Committee Chair Ravi Patel

43

8/15/2008

Deposition Transcript of Former CEO Secretary Arlene Ramos-Aninion

5

44

12/5/2007

Deposition Transcript of Surgeon Edward Taylor

6

45

12/6/2007

Deposition Transcript of Neurosurgeon Charles Wrobel

46

8/21/2008

Deposition Transcript of Psychiatry Chair Tai Yoo

47

8/20/2008

Deposition Transcript of Acting Pathology Chair Philip Dutt

48

9/14/2006

Acting Pathology Chair Philip Dutt Email to Barnes re Plaintiff’s Paycut Amendment

12

49

10/17/05

Plaintiff email to Bryan re Serious Biopsy Errors

13

50

3/2/2006

Exh. 271: Plaintiff email to Bryan re Serious Biopsy Errors

51

4/21/2006

Emails between Plaintiff and Bryan re Serious Biopsy Errors

52

8/7/2008

Deposition Transcript of Pathologist Savita Shertukde

53

3/11/2008

Deposition Transcript of David Jadwin, Vol. IV

19

54

10/21/2003 Confidential Report on Lau Complaint against Jadwin

20

55

1/8/2008

Deposition Transcript of David Jadwin, Vol. I

56

9/9/2008

Deposition Transcript of PMK Acting Pathology Chair Philip Dutt, Vol. II

57

12/4/2007

Deposition Transcript of HR Director Steven O’Connor

58

10/10/2005 Amendment No. 1 to Employment Contract of Acting Pathology Chair Philip Dutt

59

11/1/2005

1 2 3 4

7 8 9 10 11

14 15 16 17 18

21 22 23 24 25 26

Employment Contract of Pathologist Savita Shertukde

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

4

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

60

6/19/2007 4.

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Employment Contract of Pathologist Gian Yakoub

Attached hereto as Exhibits 2-14, 24-25, 27, 29, 33, 35-47, 52-53 and 55-57 are true and

correct certified copies of deposition transcripts which I either personally conducted or attended. 5.

Attached hereto as Exhibits 15-16 are true and correct copies of letters which I authored

and faxed to Karen Barnes, Chief Deputy County Counsel for the County of Kern on the dates indicated. 6.

I have served four sets of written discovery on Defendants which included Document

Request No. 44. asking for “Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from Chair of Kern Medical Center’s Pathology Department to staff pathologist.” To date, Defendants have not produced any of the agendas for any JCC meetings including the meeting at which the JCC voted to approve Plaintiff’s demotion from chair. Defendants have engaged in a level of discovery obstruction that is more excessive than I have ever encountered in my 13 years practicing as an attorney, of which this is but the latest example. 7.

Attached hereto as Exhibits 17 is a true and correct copy of Defendants’ responses

received by me in response to Plaintiff’s Request for Production of Documents, Set One, propounded by me on behalf of Plaintiff.

16 17 18

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

19 20 21

Executed on: December 1, 2008

22 23

/s/ Eugene D. Lee

24

EUGENE D. LEE Declarant

25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

5

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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

EXHIBIT 23

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

28

i

l'

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WILLIAM J. COLBURN, M.D. Women's Cancer Center - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

August 30, 2006 B. C. Barmann, Sr., County Counsel

By Karen S. Barnes, Deputy County Counsel OFFICE OF THE COUNTY COUNSEL - COUNTY OF KERN Administrative Center 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA. 93301 RE: Expert Review - David F. Jadwin, D.O. Exhibit "A"

Dear Mr. Barmann, The 21 pathology cases forwarded to me for extramural consultation review have been completed in what I believe to be a timely manner. Dr. Judwin's pathology reports to be authoritative in all aspects rendering concise tissue diagnoses. The standardized reports issued by the Department of Anatomic Pathology Kern Medical Center, Bakersfield, California, satisfy all requirements for the pre-analytic, analytic and post-analytic phases for reporting of anatomic pathology cases. In all instances immunohistochemistry special stains were appropriately ordered and microscopically evaluated for those difficult and challenging diagnostic cases. Dr. Judwin appropriately solicited "expert" extramural consultation opinions from noted local-regional and national gynecologic pathologists and to his credit constantly up-dated the primary surgeon of record in all instances as to their progress. This reviewing pathologist concurs with Dr. Judwin's final diagnosis in 20 of21 cases. The only discordant case (S05-1347; 2-25-05) concerned the interpretation of a colposcopic biopsy of the cervix, which was initially interpreted as showing focal severe dysplasia. I find no evidence for a high grade squamous intraepitheliallesion, favoring a diagnosis of mild koilocytotic dysplasia ( CIN I / LGSIL). A subsequent LEEP conization; in view of the aforementioned, may have been averted. In regards to the 20 concordant cases, appropriate surgery was performed. In no instances was post-operative patient care in any way compromised. In view of the aforementioned, I would assess Dr. Judwin's overall performance as a

practicing anatomic and surgical pathologist to exceed the usual standard ofcare exercised by a practicing surgical pathologist in a busy tertiary community hospital. 0025924 0025924

1

----------------------

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

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If I can be of any further service to you regarding this matter, please do not hesitate to contact me at your convenience. Respectfully,

Wi.U,·o~ .\
URN,M.D.

Senior Pathologt Women's Cancer Center, Tarzana Regional Medical Center, Tarzana, California

WJCIIlcIKemcountymed1eg Enclosures: 21 reports; statement of fees (microscopic slides to be returned under separate cover)

0025925

0025925

2

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

Page I of2 0025926

Document 277-3

Filed 12/01/2008

Page 9 of 191

0025926

..

1

Case 1:07-cv-00026-OWW-TAG 08-22-06 19) 805-923

Document 277-3 Filed 12/01/2008 Page 10 of 191 55 minutes 1100 - 1155 hours

20) 805-2176

08-23-06 08-24-06

1345 - 1435 hours 1300 - 1345 hours

95 minutes

21) 805-2176

08-24-06

1415 - 1435 prep work 1445 - 1540

75 minutes

Review 10 Cases

08-28-06

60 minutes

Review 11 cases

08-29-06

60 minutes

Total Time 1135 min = 18.917 hours @ $3001hour = $5675.00

Billing Statement Pagc20f2 0025927

0025927

r _.

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1

~• WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

S-05-1347 CASE #: KOOOl135192 UNIT #: ACCT #: K0505600194 ATTENDING PHYSICIANS: Joseph Mansour, M.D., Nbalia Marie-Ange Soumah, M.D.

I. CLINICAL HISTORY: 33-year old GO PO female referred from Tulare, California for recurrent low grade squamous intraepitheliallesion. Status post cryotherapy, April of 2002. Cone biopsy September of 2003 revealed a low grade squamous intraepitheliallesion. II. GYNECOLOGIC PROCEDURES: A. Colposcopic biopsy of the cervix (S-05-1347; 2-25-05). - Ectocervical mucosa with focal severe dysplasia.

III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER CASE: S-05-1347; 2-25-05; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-4-06 A. COLPOSCOPIC BIOPSY UTERINE CERVIX (ANATOMIC SITE NOT OTHERWISE SPECIFIED): - mild koilocytotic dysplasia ( CIN 1/ LGSIL ). -

there is no evidence for high grade mucosal dysplasia or malignancy.

B. ENDOCERVICAL CURETTAGE: -

isolated strips of endocervical canal mucosa and portions of metaplastic squamous epithelium showing mild cytologic atypia ( ASCUS ).

-

there is no definitive microscopic evidence for HPV-induced epithelial virocytopathic effect, mucosal dysplasia or malignancy.

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I

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT:

There is no definitive microscopic evidence for a high grade squamous epithelial lesion as eluded to in the diagnosis rendered by the initial pathologist referable to cervical biopsy ( Part A). The ECC material shows squamous metaplasia exhibiting mild cytologic atypia ( ASCUS ), which is most likely secondary to inflammatory-induced changes. There is no definitive cytologic evidence for HPV-induced virocytopathic effect, or mucosal dysplasia.

W~c\fn~ URN, M.D.

WILLIAM J. C Holscherlkern/wjc/lIc/8-6-o6

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0,

I' t

-

WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-04-4674; 08-19-04/ N-04-222; 08-19-04 UNIT #: KOOO1000548 ACCT #: K0423000867 ATTENDING PHYSICIANS: William J. Roy, M.D., Nicola M. Spiros, M.D., Basem Z. Bemaba, M.D.

I. CLINICAL HISTORY: 82-year-old female with a history of a complex left adnexal mass further scheduled for an exploratory laparotomy, bilateral salpingo-oophorectomy, retroperitoneal dissection, and repair of umbilical hernia. Tentative date of surgery 08-19-04.

II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: The patient underwent an exploratory laparotomy on 08-19-04, where a dominant left adnexal mass of primary ovarian origin was found adherent to the left pelvic sidewall. The right tube and ovary were grossly unremarkable. Frozen section of the left ovary interpreted as "mucinous cystadenofibroma with focal cytologic atypia (which may lead to upgrade to mucinous borderline tumor on permanent sections)." In view of the aforementioned rendered intraoperative frozen section diagnosis findings, the surgeons in attendance decided to terminate the procedure. The patient tolerated the surgery well and left the operating room in good condition. The patient remained hospitalized for five days and was discharged to home on 08-24-04.

III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE N-04-222; 08-19-04 AND S-04-4674; 08-19-04, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-12-06 A. N-04-222 - PERITONEAL WASHINGS FOR CYTOLOGIC EVALUATION (CYTOCENTRIFUGE PREPARATIONS X 2, PAPANICOLAOU STAIN AND CELL BLOCK PREPARATION XI, H&ESTAIN): -

Amid a bloody proteinaceous background containing the usual leukocyte constituents of blood are portions of cellular debris, fibrin threads and 0025930

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particles of adipose tissue, with rare poorly preserved grouped arrays of reactive mesothelial cells encountered. No cytologically unequivocally neoplastic cells are identified.

B. S-04-4674 1. LEFT OVARY AND FALLOPIAN TUBE:

-

Clear cell adenocarcinoma exhibiting rare isolated complex glomeruloid papillae, as well as demonstrating, in some areas, an accompanying adenofibromatous stroma; left ovary. Representative cross section of histopathologically unremarkable left fallopian tube.

2. RIGHT OVARY AND FALLOPIAN TUBE: -

Cortical serous cystic inclusion rests without other significant histopathologic abnormality; right ovary Representative cross sections of histopathologically unremarkable right fallopian tube.

3. NODULE FROM HERNIA: -

Adipose tissue with saponification of fat / fat necrosis and interstitial iatrogenic induced hemorrhage; negative for metastatic tumor.

IV. EXTRAMURAL EXPERT CONSULTATION OPINION - DR. JUAN FELIX, WOMEN AND CHILDRENS HOSPITAL, KECK SCHOOL OF MEDICINE, UNIVERSITY OF SOUTHERN CALIFORNIA, LOS ANGELES: A. S-04-4674; 08-25-04 Clear cell carcinoma.

B. N-04-222; 08-30-06; PERITONEAL WASHINGS

-

Peritoneal washings containing scattered mesothelial cells showing reactive changes. No cytologic evidence of tumor is identified.

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REVIEWING PATHOLOGIST'S SUMMARY COMMENT: Original pathologist intraoperative frozen section diagnosis indicates that the tumor demonstrates atypical cytomorphologic features, which may result in upgrading the left ovarian neoplasm to a carcinoma. Review of permanent sections of the frozen section material shows a dominant adenofibromatous architecture with minimal cytologic atypia. The true nature of this neoplasm was revealed by the subsequent multiple tissue sections submitted from appropriately fixed and processed. tumor tissue. Appropriate second opinion was sought in a timely manner.

S-04-4674 N-04-222 Kirsch 08-14-<J6 Page 3 00 0025932

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: UNIT #: ACCT:

S-06-1066;3-7-06 KOOO1029137 K0606600818

CASE #: S-06-1680; 4-13-06 UNIT #: KOOOI029137 ACCT: K0610300618

ATTENDING PHYSICIANS: Joseph Mansour, M.D., Kurt Finberg, M.D., Roy William, M.D.

I. CLINICAL HISTORY: 44-year old female, G3, P3,.presenting with pain and swelling of the left vulva since 106. Clinical impression: 3.5 cm mass left labia residing 1 cm from the mid-line posteriorly. Cervix and vagina - within normal limits. Uterus - normal size, shape and configuration without mass effect. Pap smear 3-21-06 - within normal limits. Vulvar mass biopsy (S-06-1066; 3-7-06): squamous cell carcinoma in situ with probable microinvasive carcinoma. II. GYNECOLOGICAL SURGERY / HOSPITAL COURSE: Modified radical hemi-vulvectomy performed 4-13-06. Patient tolerated the procedure well and without complications. Length of hospital stay - 5 days.

III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER- CASES # S-06-1066; 3-7-06 AND S-06-1680; 4-13-06, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-4-06 A. CASE S-06-1066, BIOPSY, LEFT VULVAR MASS: -

basaloid squamous cell carcinoma. superficial nature of the biopsy and tangential nature of sectioning precludes definitive microscopic diagnosis of a micro- / macro-invasive dermal tumor component.

B. CASE S-06-1680; 4-13-06, LEFT VULVECTOMY: infiltrating moderately differentiated basaloid squamous cell carcinoma.

I ,

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high-grade vulvar intraepithelial neoplasia ( VIN II-Ill ); 6:00 - 9:00 vulvar cutaneous margin of excision. angio-Iymphovascular invasion by tumor; interface of deep dennis and superficial hyperdennis..

C. LEFf VULVAR MASS, INFERIOR - LATERAL MARGIN EXCISION: multiple sections of histopathologically unremarkable hirsute skin; negative for vulvar intraepithelial neoplasia (VIN) or malignancy.

IV. REVIEWING PATHOLOGIST'S SUMMARY COMMENT: This reviewing pathologist concurs in toto with the initial pathologist's diagnoses referable to cases S-06-1066 and S-06-1680.

w· WILLIAMJ.C

Thompson/kem/wjc/1lc/8-4-2006

I

I ~

I

I \

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-05-755l UNIT #: KOOOl146283 ACCT #: K0533500457 ATTENDING PHYSICIANS: William Roy, M.D.

I. CLINICAL HISTORY: 52-year old G2, P2, referred to CSB Clinic for vaginal bleeding x 2 years. EMB,9-l4-05 reported as endometrioid adenocarcinoma. ECC, 10-28-05 - negative for neoplasm. Patient reported as menopausal since 2003. On honnone replacement therapy from 1982 to 2002.

II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: Patient was scheduled for a total abdominal hysterectomy and bilateral salpingooophorectomy and bilateral pelvic and peri-aortic lymph node dissection on 12-1-05. Patient tolerated the surgery well and had a fairly uneventful post-operative hospital course and was discharged home on post-op day 3 (12-4-05). III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE #: S-05-7551; 12-01-05; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, CALIFORNIA A. UTERUS, CERVIX, BILATERAL FALLOPIAN TUBES AND OVARIES: -

Infiltrating endometrioid adenocarcinoma; FIGO II, penetrating greater than 50% of the mural thickness of the uterine wall.

-

Isolated mural angiolymphatic channels show the presence of intraluminal free-floating tumor emboli which may represent a fictitious iatrogenicinduced phenomena.

-

Benign leiomyomata exhibiting degenerative architectural features

-

Nabothian cysts and tunnel cluster fonnation; endocervical canal mucosa. Squamous metaplasia: transition zone of cervix. 0025935

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Unremarkable well glycogenated exocervical squamous mucosa. Cortical serous cystic inclusion rests; right and left ovaries. Representative tangential sections ofhistopathologically unremarkable right and left fallopian tubes.

B. RIGHT PELVIC LYMPH NODE DISSECTION: -

benign reactive lymph nodes ( 11 ).

C. RIGHT PARA-AORTIC LYMPH NODES: -

benign reactive lymph nodes ( 1 ).

D. LEFf PELVIC LYMPH NODE DISSECTION: -

benign reactive lymph nodes ( 13 ).

E. LEFf PERI-AORTIC LYMPH NODES: -

benign reactive lymph nodes ( 2 ).

F. OMENTUM: -

unremarkable omental fat pad.

G. CLINICAL ABDOMINAL LESION EXCISION: hyperkeratotic verrucoid keratosis; not otherwise specified. there is no evidence for malignancy.

IV. REVIEWING PATHOLOGIST'S SUMMARY COMMENT: This consulting pathologist concurs with the diagnoses as rendered by the initial examining pathologist of record.

w

~

,

WILLIAMJ.C Voss/kem/wjc/l1c/S-11-o6

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

S-04-7471 CASE #: UNIT #: KOOOI138692 ACCT # K0435100474 ATTENDING PHYSICIANS: Nicola Spirtos, M.D.

I. CLINICAL HISTORY: 86-year old Caucasian female G5, P4 with a chief complaint of post-menopausal bleeding x 8 days beginning November, 2004. Scheduled for D&C.

II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: Fractional dilatation and curettage performed at Kern Medical Center, Bakersfield, California on 12-16-04 under general anesthesia. Separate and distinct EMB and ECC tissue samples forwarded to pathology for tissue analysis ( surg. path. # S-04-7471; parts A and B).

PATHOLOGY DIAGNOSIS - S-04-7471; 12-17-04: A. ENDOCERVICAL CURETTAGE: - scanty detached fragments of hypersecretory endometirum. - mucin and endocervical mucosa with no pathologic findings. B. ENDOMETRIAL BIOPSY: small fragments of endometrium, mixed with blood and endocervical mucus. - focal, limited areas suspicious for adenocarcinoma with squamous differentiation and possibly containing mixed clear cell carcinoma. - The tissue is insufficient for accurate grading or further diagnosis.

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III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER CASE: S-04-7471; 12-17-04; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA, 8-4-06 A. ENDOCERVICAL CURETTAGE: isolated rare strips of mechanically distorted endocervical canal mucosa are encountered with the overall quantitative - qualitative features of the specimen deemed inadequate in order to render a definitive tissue diagnosis. B. ENDOMETRIAL CURETTAGE: endometrioid adenocarcinoma exhibiting clear cell cytomorphologic features and accompanying squamous metaplasia. The findings of clear cell features warrant strong consideration of a high grade endometrioid adenocarcinoma; FIGO Grade 3.

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT: This reviewing pathologust concurs with the initial pathologist's final diagnosis: Part A - endocervical curettage ( not additional levels ) is deemed both quantitatively and qualitatively insufficient and therefore a definitive tissue diagnosis is not possible. Part B - endometrial curettage shows fragmented portions of endometrial gland and stromal tissue showing a moderate degree of epithelial atypia with a vague fenestrated gland architecture with isolated rare mitotic figures encountered. The nucleus to cytoplasmic ratio is moderately increased. Of note: Clear cell tumoral cytomorphologic features are noted at the surface of some frond-like structures. In the differential diagnosis is atypical complex hyperplasia with associated clear cell / squamous metaplasia vs endometrioid adenocarcinoma exhibiting clear cell features; FIGO Grade 3. This reviewer favors the latter diagnosis. This case is difficult as eluded to in the descriptive microscopic and diagnosis rendered by the original pathologist described as "hypersecretory endometrium exhibiting papillary, clear cell and eosinophilic metaplasia to focal limited areas suspicious for adenocarcinoma with squamous differentiation and possibly containing mixed clear cell carcinoma". The only criticism that can be made is the somewhat protracted delay in procuring an extramural consultation opinion (approximately 3 months). This in no way however should be considered to have negatively impacted the clinical course of this patient's disease process.

tJJ JJ.1.lo..

WILLIAM J.

~LBURN, Cc:l L&-= M.D.

assoni/kem/wjcnlcl8-4-o6

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASES #:

8-05-1514; 3-4-05 8-05-2811; 5-5-05 8-05-3286; 5-26-05 UNIT #: K0000870589 ATTENDING PHYSICIANS: Joseph Mansour, M.D., Preete Bhanot, M.D., William Roy, M.D.

I. CLINICAL HISTORY: 34 year old G2 PO female with history of status post previous vaginal biopsy reported as VAIN III and dated 2-2-05. Most recent-antecedent pap smear ( 2-15-05 ) was reported as within normal limits. The patient was scheduled for a wide radical excision of this lesion on 5-5-05. II. GYNECOLOGICAL SURGERY I HOSPITAL COURSE:

Radical wide excision of vulva was performed on 5-05-05. The pathology report reported the findings of an invasive moderately differentiated squamous cell carcinoma with submucosal microinvasion to a measured depth of 2.2 mm. A subsequent staging procedure with right groin lymph node dissection was performed on 5-26-05. Post-op convalescence uneventful. III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASES: S-05-1514, 3-4-05; S-05-2811, 5-5-05; S-05-3286, 5-26-05; WILLIAM J. COLBURN, M.D. WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-8-06

1). CASE #: S-05-1514: A. PUNCH BIOPSY, VULVA (NOS):

-

VIN III with evolution to microinvasive moderately differentiated submucosal microinvasion to a measures depth of 0.8 mm.

-

Dermal lymphatic invasion by tumor is identified. 0025939

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B. UTERINE CERVIX, 12:00 POSITION:

Superficially biopsied and tangential sections of histopathologically unremarkable well glycogenated exocervical squamous mucosa. Reserve cell change / immature squamous metaplasia; transition zone of cervix. There is no evidence ofHPV-induced epithelial virocytopathic effect, mucosal dysplasia or malignancy. 2). CASE #: S-05-2811 A. VULVA, MEDIAL MARGIN, 12:00 - 6:00 EXCISION:

Hirsute vulvar skin, negative for vulvar intraepithelial neoplasia or malignancy. B. RIGHT VULVA, RADICAL VULVECTOMY:

VIN III with evolution to infiltrating moderately differentiated keratinizing squamous carcinoma; submucosal depth of invasion greater than 2 mm ( slide section B5 ). All newly re-established circumferential cutaneous, dennal and central superficial hypodermal margins of excision are noted to be free of tumor. 3).

CASE #: S-05-3286 A. RIGHT FEMORAL LYMPH NODES:

Benign reactive lymph nodes ( 2 ). B. RIGHT FEMORAL LYMPH NODES:

Benign reactive lymph nodes ( 2 ). C. RIGHT INGUINAL / FEMORAL LYMPH NODES:

Benign reactive lymph nodes ( 7 ).

0025940 8-05-1514; 3-4-05/8-05-2811; 5-5-05/ 8-05-3286; 5·26-05

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IV. ANATOMIC PATHOLOGY SUMMARY COMMENT:

This reviewing pathologist concurs with the initial pathologist's diagnoses as rendered.

W~~Co1JJ,...LBURN, M.D.

WILiiAMJ:

Dawson/kernlwjclllc/8-9-o6

0025941 S-05-1514; 3-4-05 /5-05-2811; 5-5-05 / 5-05-3286; 5-26-05

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

S-05-812 CASE #: UNIT #: K0001142312 K0503500023 ACCT #: ATTENDING PHYSICIANS:

Joseph Mansour, M.D., William Roy, M.D.

I. CLINICAL HISTORY: 67-year old G4 P3 female with chief complaint of vulvar itching. The patient was pr~viously treated with antibiotics for infection. The lesion had been increasing in size over the course of a few months with the patient noting swelling above the clitoris without associated bleeding. II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: Biopsy performed 12-4-05 left labia minora, without complications, Kern Medical Center, Surg. Path. #: S-05-812; 2-4-05. Further review of the chart reveals a wide local excision of the vulvar lesion performed on 3-3-05. The final pathology referable to the wide local excision specimen, 3-3-05, is not available at the time of anatomic pathology consultation review. III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-05-812; 2-4-05; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA; . 8-8-06 BIOPSY LEFT LABIA MINORA, 1:00 POSITION: -

skin showing moderate parakeratosis, acanthosis and spongiosis noted in conjunction with a moderate influx of predominantly small reactive lymphocytes residing within the underlying dermis proper. there is no evidence for vulvar intraepithelial neoplasia or malignancy.

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I

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT: Although the aforementioned descriptive histomorphologic features as cited above are overall nondiagnostic, the histomorphologic features suggest a lichenoid dennatidity, i.e. early phase of lichen simplex chronicus. There is no evidence for vulvar intraepithelial neoplasia, cutaneous malignancy or underlying evolving lymphoproliferative process. The findings of this biopsy should be correlated with those of the definitive local excision of the reported mass perfonned on 3-3-05.

t . . ) l..1JJ.bM. ~CoJA,--

WILLIAM J.

BBURN, M.D.

KaurlkemlwjclllclS-S-06

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-05-3265; 5-26-05 UNIT #: K0000679293 ACCT #: K0514300893 ATTENDING PHYSICIANS: William J. Roy, M.D., Preete Bhanot, M.D. I. CLINICAL HISTORY: 66-year old gravida 2, para 2, female referred to Kern Medical Center for postmenopausal bleeding beginning in late February, 2005. The patient was seen in gynecologic consultation at Kern Medical Center on 5-19-05. Previous endometrial biopsy dated 4-28-05 was reported as poorly differentiated carcinoma with an accompanying ECC noted to reveal sheets of neoplastic undifferentiated small carcinoma cells. Cervical biopsies at the 5:00 and 12:00 positions were unremarkable. Pertinent physical examination limited to the pelvis revealed the external genitalia to be within normal limits, normal urethra and bladder. The vulva and vagina were free of abnormalities. The cervix was noted to be friable and the uterus was slightly enlarged. The right and left adnexa were "within normal limits". The patient was scheduled for an exploratory laparoscopy - total abdominal hysterectomy and bilateral salpingooophorectomy, peritoneal washings and possible lymph node dissection for staging procedure. II. GYNECOLOGIC SURGERY I HOSPITAL COURSE: The patient's TAHBSO was performed on 5-26-05 without complications and the patient left the operating room in stable condition. INTRAOPERATIVE FROZEN SECTION DIAGNOSIS (# 1): malignant neoplasm with high grade nuclear features. differential diagnosis includes chloroma, high grade sarcoma for anaplastic undifferentiated carcinoma. FROZEN SECTION DIAGNOSIS (# 2): - POSTERIOR VAGINAL MARGlN: no epithelial malignant neoplasm identified. The patient's hospital course over the next four days was relatively uneventful and she was discharged to her home on 5-30-06 in stable condition, advised to follow up in the gyne clinic in approximately one week post-discharge.

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III. EXTRAMURAL CONSULTATION OPINION REVIEW, KERN COUNTY MEDICAL CENTER, CASE #: S-05-3265; 5-26-05; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-17-06 A. UTERUS AND ADNEXAE:

- TAH-BSO: - undifferentiated small cell neoplasm exhibiting a sarcomatoid stroma and abortive attempts at gland formation; summary histomorphologic features consistent with a malignant mixed Mullerian tumor ( MMMT ); apparently eminating from the body of the uterus with local regional metastases to an ovary whose laterality is not further specified. -

angio-Iymphovascuhrr invasion by tumor is identified. adenomyosis, myometrium.

-

histopathologically unremarkable endocervical canal mucosa.

-

unremarkable well glycogenated exocervical squamous mucosa.

-

sections of atrophic ovary whose laterality is not further specified showing a lymphatic channel within the meso-ovarium containing a large intraluminal free-floating embolus of metastatic undifferentiated carcinoma. representative cross sections of histopathologically unremarkable right and left fallopian tubes.

- VAGINA, POSTERIOR MARGIN (SLIDE "B I"): squamous epithelial lined vaginal mucosa, negative for mucosal dysplasia or malignancy. B. PERITONEAL WASHINGS: - slides not available for review.

c.

RIGHT ILIAC LYMPH NODE BIOPSY: - benign reactive lymph node ( 1 ).

D. RIGHT OBTURATOR LYMPH NODE BIOPSY: - metastatic MMMT involving multiple fragmented lymph nodes. F. RIGHT PARA-AORTIC LYMPH NODE BIOPSY: benign reactive lymph nodes (5 ).

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NOTE: Slides "FI" and "F3" demonstrate the presence of multiple particles ofMMMT which do not involve lymph node structures. G. LEFT PELVIC LYMPH NODE BIOPSY: - one of twelve ( 1 /12) lymph nodes almost completely replaced byMMMT. H. LEFT PARA-AORTIC LYMPH NODE BIOPSY: - benign reactive lymph nodes ( 2 ).

IV. OUTSIDE CONSULTATION OPINION, DR. ROBERT H. YOUNG, DEPARTMENT OF PATHOLOGY, MASSACHUSETTS GENERAL HOSPITAL I HARVARD MEDICAL SCHOOL; 6-10-05 DIAGNOSIS:

- undifferentiated carcinoma exhibiting biphasic morphology; summary histomorphologic features consistent with malignant mixed Mullerian tumor. - atrophic phenomena referred to as transitional cell metaplasia; vagina.

V. ANATOMIC PATHOLOGY SUMMARY COMMENT:

This reviewing pathologist agrees with the final diagnosis as rendered by the initial pathologist of record.

w~ ~BURN, CoJW---M.D.

WILLIAM J. C

Burton-kem-wjc-llc-S-22-o6

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i'

•

WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-05-2176; 04-07-05 UNIT #: K0001146515 ACCT #: K0508000982 ATTENDING PHYSICIANS: William J. Roy, M.D., Homayoun Sadeghi, M.D., and Preete Bhanot, M.D. I. CLINICAL HISTORY: 55-year-old female admitted through Kern Medical Center ER on 03-22-05, with primary history of increasing abdominal girth / distention x two months PTA, associated with nausea and vomiting two days prior to admission. A pelvic exam revealed a large pelvic mass resulting in a gynecologic - oncologic consultation. CT and MRI studies revealed a retroperitoneal mass with associated microcalcifications. Previous abdominal surgery, ten years PTA, for a reported schwannoma; retroperitoneal. CA-125 of "666" with other tumor markers reported as negative. Paracentesis was performed with cytologic evaluation of the fluid, reported as "clear cell adenocarcinoma, origin most likely of the ovary." Further management of multiple medical conditions transpired from 03-22-05 through 04-05-05. The patient was scheduled for exploratory laparotomy, total abdominal hysterectomy, bilateral salpingo-oophorectomy, and omentectomy, right pelvic lymph node dissection, and bilateral retroperitoneal lymph node dissection on 04-07-05. II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: At the time of surgery, widespread carcinomatosis was noted, with involvement of the omentum and apparent peritoneal surface involvement of the major pelvic organs. The differential diagnosis at the time of the intraoperative surgical event was primary ovarian carcinoma versus primary peritoneal carcinoma. Intraoperative Diagnosis,.. Frozen Section Diagnosis: Omentum, Hernia Sac, Tumor Excision: - Papillary serous adenocarcinoma, low grade with psammoma bodies. A complicated surgical debulking procedure continued and the patient left the operating room / recovery room in stable, but guarded condition. Subsequently, the patient developed a pulmonary embolism. Postoperative course was complicated by a pulmonary embolism and diabetes management, which resulted in a protracted hospital stay during which the patient received three cycles of chemotherapy prior to her discharge to home, with the assistance of a home healthcare nurse. 0025947 Page 1 of4 0025947

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III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-05-2176; 04-07-05, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-23-06 A. OMENTUM, HERNIA SAC, AND TUMOR EXCISION:

- Invasive desmoplastic high-grade adenocarcinoma of miillerian serous membrane origin, with adjuvant extensive immunohistochemistry tumor marker histiogenesis profile analysis supporting further classification ofthis tumor as a high-grade clear cell adenocarcinoma. B. PLAQUE OFF OF ILEUM:

- Invasive desmoplastic adenocarcinoma of miiIlerian serous surface origin. C. LEFT ANTERIOR ABDOMINAL WALL EXCISION:

- Invasive high-grade adenocarcinoma of miiIlerian serous surface origin. D. UTERUS AND ADNEXA, TOTAL ABDOMINAL HYSTERECTOMY:

- Invasive desmoplastic "implant" of high-grade serous surface adenocarcinoma; left ovary and meso-ovarian soft tissue elements. - Representative cross sections of atrophic left fallopian tube. - Atrophic right ovary and fallopian tube; negative for tumor. - Benign leiomyomata exhibiting atrophic architectural features - Inactive endometrium. - Nabothian cysts and squamous metaplasia; transition zone of the cervix. - Unremarkable proximal endocervical canal mucosa and similarly unremarkable well-glycogenated exocervical squamous mucosa. E. RIGHT PELVIC LYMPH NODES:

- Benign reactive lymph nodes (6). F. LEFT SUBCUTANEOUS TISSUE:

- Subcutaneous involvement by invasive high-grade adenocarcinoma. G. LEFT HERNIA SAC AND TUMOR:

- Invasive high-grade adenocarcinoma.

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H. PERIUMBILICAL TUMOR:

- Invasive high-grade adenocarcinoma. I. ILEAL NODULES:

- Invasive high-grade adenocarcinoma. J. SEGMENTAL RESECTION - TERMINAL ILEUM: - Mesenteric / serosal "implants" of invasive high-grade adenocarcinoma of mullerian serous surface origin. K. UMBILICAL TUMOR:

- Invasive high-grade adenocarcinoma. L. OMENTUM AND HERNIA SAC:

- Invasive desmoplastic high-grade adenocarcinoma of mullerian serous surface origin.

IV. SURGICAL PATHOLOGY CONSULTATION REPORT - UCLA MEDICAL CENTER (THEIR SURGICAL PATHOLOGY # R-05-6313; 0429-05) - PERTINENT PATHOLOGY DIAGNOSTIC FINDINGS:

A. Uterus and Adnexa: Left Ovary: - Ovarian serous surface is positive for metastatic clear cell carcinoma. Right Ovary: - Negative for carcinoma. Uterus and Cervix: - Inactive endometrium with cystic atrophy. - Leiomyomata with hyaline fibrosis. - Focal chronic cervicitis. - Negative for carcinoma. Right and Left Fallopian Tubes: - Negative for carcinoma. B. Right Pelvic Lymph Nodes: - Six lymph nodes negative for metastatic carcinoma. C. Left Subcutaneous Tissue: - Fibroadipose tissue and skeletal muscle, with clear cell carcinoma.

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i

D. Clinical Hernia Sac and Tumor, Left: - Fibroadipose tissue with clear cell carcinoma. E. Clinical Tumor, Periumbilical: - Dense fibroadipose tissue with clear cell carcinoma. F. Clinical Nodule, Ileal: - Fibroadipose tissue with clear cell carcinoma. G. Terminal Ileum: - Serosal surface of ileum with clear cell carcinoma. - Unremarkable colonic mucosa. H. Clinical Tumor, Umbilical: - Dense fibroadipose tissue with clear cell carcinoma. I. Omentum and Hernia Sac: - Fibroadipose tissue with clear cell carcinoma. Comment: The bulk of the tumor is noted in the omentum and the left ovary tumor nodules only on the serosal surface with similar histology. These findings are supportive of a peritoneum primary. The immunostains are supportive of a miillerian primary. Clinical - pathologic is suggested. V. ANATOMIC PATHOLOGY SUMMARY COMMENT:

This reviewing pathologist concurs with the final microscopic diagnosis as rendered by the initial examining pathologist. Extramural consultation review was appropriately sought by the Department of Anatomic Pathology, Kern Medical Center, Bakersfield, California. The original intraoperative pathology consultation opinion as rendered favored a low-grade miillerian serous surface carcinoma, with subsequent permanent sections upgraded to reflect a high-grade adenocarcinoma. Extensive IHC tumor histiogenesis marker profile supports clear cell differentiation of this miillerian serous surface neoplasm, which is deemed to be ofprimary peritoneal origin.

w ~ ~-.JCa..aJ.LAJ.U·===:",--_ _

WILLIAM J. C~BURN, M.D.

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WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: 8-06-757,02-16-06; 8-06-981, 03-02-06; N-06-51, 03-02-06 UNIT #: K0001155514 ACCT #: K0604600094 ATTENDING PHYSICIANS: Joseph Mansour, M.D., William J. Roy, M.D.

I. CLINICAL m8TORY: 37-year-old female G6 P5 with pertinent medical history of a cervical biopsy showing papillary serous adenocarcinoma (Kern Medical Center Case # 8-06-757; 02-16-06). The patient was scheduled for a radical abdominal hysterectomy, bilateral salpinooophorectomy, and lymph node dissection on or about 03-02-06. II. GYNECOLOGIC SURGERY I HOSPITAL COURSE: The patient was admitted to Kern Medical Center, Bakersfield, California, on 03-0206 for a radical TAH-B80 and lymph node dissection. The patient tolerated the surgicai procedure well and left the operating room.in good condition. 8he experienced an uneventful four day postop hospital course and was discharged home on 03-06-06, and scheduled for postop follow-up at prescribed intervals. III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASES 8-06-757, 02-16-06; S-06-981, 03-02-06; N-0651, 03-02-06, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-16-06 A. 8-06-757: 1. CERVICAL LESION:

.,. High-grade papillary adenocarcinoma; endocervical type, mucinous variant.

*

Extramural Expert Consultation Opinions: a) UCLA Medical Center - Cervical Lesion: - Mucinous adenocarcinoma, papillary and solid. - Poorly differentiated (high grade).

b) University o/Southern California -Juan C. Felix; Womens and Childrens Hospital- Cervical Lesion: - Adenocarcinoma of the cervix of the usual mucinous type. 0025951 Page 10f4 0025951

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B. S-06-981:

1. UTERUS, CERVIX, BILATERAL FALLOPIAN TUBES AND OVARIES: - Invasive high-grade papillary adenocarcinoma; endocervical type, mucinous variant noted in conjunction with invasive papillary endocervical adenocarcinoma, usual type, and arising at the transition zone ofthe cervix. - Lymphatic invasion by tumor is identified. - Well-glycogenated unremarkable exocervical squamous mucosa. - Secretory phase endometrium; endometrial cavity. - Representative transmural sections of histopathologically unremarkable uterine myometrium and serosa. - Physiologic cysts, right and left ovaries, and representative cross sections of unremarkable right and left fallopian tubes. 2. RIGHT PARA-AORTIC LYMPH NODES:

- Benign reactive lymph nodes ( 4 ). 3. RIGHT COMMON ILIAC LYMPH NODES:

- Subcapsular sinus involvement by micrometastatic endocervical adenocarcinoma; mucinous variant, involving one offour (1/4) lymph nodes. 4. RIGHT PELVIC LYMPH NODES:

- Macrometastatic papillary adenocarcinoma; endocervical type, mucinous variant involving one of fourteen (1/14) lymph nodes. 5. LEFT PARA-AORTIC LYMPH NODE:

- Benign reactive lymph node (1). 6. LEFT COMMON ILIAC LYMPH NODES:

- Macrometastatic high-grade papillary adenocarcinoma; endocervical type, mucinous variant involving one of three (1/3) lymph nodes. - A tumor "floater" is identified in immediately adjacent outer mantle of adipose tissue.

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7. OMENTUM:

- Histopathologically unremarkable omental fat pad. 8. OMENTAL LYMPH NODE:

- Benign reactive lymph node (l); totally embedded. 9. APPENDIX:

-

Repre~entative

sections of histopathologically unremarkable vermiform

appendix. - Periappendiceal fat pad shows the presence of a solitary (1) benign reactive lymph node. 10. LEFT PELVIC LYMPH NODES:

- Benign reactive lymph nodes (5).

*

Extramural Expert Consultation Opinion aJ UCLA Medical Center, Los Angeles, California: - Agreement in toto with the referring pathologist's interpretation; refer to UCLA Medical Center, Department of Pathology and Laboratory Medicine Surgical Pathology Consultation Report # R06-05528; 0313-06 for your further edification.

bJDr. Juan C. Felix, Keck School 0/Medicine, University o/Southern California, Los Angeles: Diagnosis - Radical Hysterectomy, Bilateral Salpingo-oophorectomy, Appendectomy, and Multiple Lymphadenoectomy Specimens: - Deeply invasive adenocarcinoma of the cervix. - Several foci of vascular space involvement are identified. - Paracervical margins negative for tumor. - Sections of uterus, fallopian tubes, ovaries, and appendix are negative for tumor. - Lymph node status: one right pelvic, one left common iliac, one right para-aortic, and one right common iliac lymph node are involved by metastatic adenocarcinoma of the cervix. C. N-06-51

1. ABDOMINAL WASHINGS FOR CYTOLOGIC EVALUATION: - Fibrin debris, red cells, and the usual leukocyte constituents of blood; with no atypical / neoplastic cells identified.

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Expert Extramural Consultation Opinion:

UCLA Medical Center, their surgicalpathology report # 806-5535; 0313-06: Final Diagnosis - Negative for malignant cells.

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT

This pathologist agrees with the original pathologist's final diagnoses.

W~~CQJ.l.w-BURN, M.D.

WILLIAM J. C

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WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-05-7114; 11-11-05 UNIT #: K001142693 ACCT #: K0519301010 ATTENDING PHYSICIANS: William J. Roy, M.D., Nbalia Soumah, D.O.

I. CLINICAL HISTORY: 35-year-old G5 P5 female presenting at the Gyn-Oncology Clinic with the chief complaint of passing flatulents and feces per vagina for several years. No remote history of vaginal laceration / vaginal trauma. Physical examination revealed a uterus of normal size, shape and configuration. Pertinent past medical history included cervical biopsies (Quest Diagnostic Laboratories) at the 7 o'clock and 11 o'clock positions, and endocervical curettings showing high-grade endocervical glandular dysplasia consistent with AIS and low-grade squamous intraepithelial dysplasia (eIN I / L8IL). The aforementioned outside diagnoses were confirmed by Kern Medical Center interdepartmental consultation slide review (case C-05-22; 07-20-05).

II. GYNECOLOGIC SURGERY I HOSPITAL COURSE: The patient was scheduled for conization biopsy of the cervix and perineal reconstruction of the vaginal laceration, the procedure carried out on 06-23-05. The patient experienced an unremarkable postoperative course and was discharged from Kern Medical Center on 06-25-05. The pathology results of the cold conization of the cervix (Kern Medical Center case No. 8-05-3830; 06-23-05) revealed focal highgrade squamous dysplasia and endocervical glandular dysplasia, high grade. A formal TAH-B80 in view of the aforementioned was performed 11-10-05, with pathology slides corresponding to the current case submitted for extramural consultation opinion (8-05-7114; 11-11-05).

III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-05-7114; 11-11-05, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-11-06 .

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A. UTERUS AND CERVIX (TOTAL LAPAROSCOPIC HYSTERECTOMY):

- Focal high-grade endocervical intraepithelial neoplasia; distal endocervical canal mucosa residing near the transition zone; totally embedded cervix. - The most distal ectocervical / vaginal margin of hysterectomy is free of HPV-induced epithelial virocytopathic change, mucosal dysplasia or malignancy. - Histopathologically unremarkable secretory phase endometrium. - Representative transmural sections of histopathologically unremarkable uterine myometrium and serosa. - Gross absence of right and left adnexal structures. IV. ANATOMIC PATHOLOGY SUMMARY COMMENT:

This reviewing pathologist agrees with the initial pathologist's final summary diagnoses.

li

l .) ; LiI.a... WILLIAM J. C

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WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-06-541; 02-02-06 UNIT #: K0000871307 ACCT #: K063300535 ATTENDING PHYSICIANS: Nbalia Soumah, D.O., William 1. Roy, M.D. I. CLINICAL HISTORY: 40-year-old female, status post Pap smear, Fall 2005, interpreted as HSIL; cannot rule out invasion (outside Pap smear, un-named laboratory). Status post colposcopic biopsies of the cervix further revealed CIS. The patient to be scheduled for a radical hysterectomy, bilateral salpingo-oophorectomy, with bilateral pelvic and possible periaortic lymph node dissection, appendectomy / or suprapubic placement of a catheter. II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: The patient was admitted to Kern Medical Center on 02-02-06 for a radical hysterectomy. TAH-BSO with pelvic lymph node dissection was performed without complication. Intraoperative pathology consultation diagnosis (frozen section diagnosis): A. Left pelvic lymph nodes - Six lymph nodes negative for malignancy. B. Right pelvic lymph nodes - Eight lymph nodes negative for malignancy. The patient had a relatively uneventful hospital stay x three days and was discharged home with a follow-up visit scheduled. III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-06-541; 02-02-06, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-14-06 A. LEFT PELVIC LYMPH NODE DISSECTION: - Benign reactive lymph nodes (11). 0025957 Page 1 of3 0025957

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B. RIGHT PELVIC LYMPH NODE DISSECTION:

- Benign reactive lymph nodes (19). C. UTERUS, CERVIX, BILATERAL FALLOPIAN TUBES, AND OVARIES:

- Infiltrating moderate - poorly differentiated squamous carcinoma, large cell type invading to a measured depth of 9 - 10 mm and arising at the transition zone of the cervix. - There is no evidence for angio -lymphovascular invasion by tumor; however fictitious inoculation of lymphatic spaces are identified due to iatrogenic sectioning at the time of pathology processing. - Basilar proliferative phase endometrium. - Representative transmural sections of histopathologically unremarkable uterine myometrium and serosa. - Immature / mature squamous metaplasia and accompanying moderate acute and chronic endocervicitis; transitional zone of the cervix. - Nabothian cysts and tunnel cluster formation; endocervical canal mucosa. - Unremarkable well-glycogenated cervical squamous mucosa. - Multiple cortical cysts of follicular derivation, right and left ovaries. - Representative cross sections of histopathologically unremarkable right and left fallopian tubes. - Appendix: Representative sections of histopathologically unremarkable vermiform appendix. IV. EXTRAMURAL EXPERT CONSULTATION OPINION - DR. JUAN FELIX, WOMEN AND CHILDRENS HOSPITAL, KECK SCHOOL OF MEDICINE, UNIVERSITY OF SOUTHERN CALIFORNIA, LOS ANGELES, PATHOLOGY # S-06-541; 07-07-06:

Diagnosis: - Large cell nonkeratinizing invasive squamous carcinoma of the cervix, nuclear grade 3 / 3. V. ANATOMIC PATHOLOGY SUMMARY COMMENT

This reviewing pathologist agrees with the initial pathologist's diagnosis of a high-grade invasive squamous cell carcinoma of the cervix, but would not

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"subspeciate" the neoplasm as a true "glassy cell" carcinoma, connoting an extremely poor prognosis.

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WILLIAM J. COj:BURN, M.D.

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WILLIAM J. COLBURN, M.D. - . 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: '818-708-5528 Fax: 818-708-5546 CASE #: S-05-923; 02-10-05 UNIT #: KOOO1128182 ACCT #: K0504000959 ATTENDING PHYSICIANS: William J. Roy, M.D., Cary Freeman, M.D., Nbalia Soumah, D.O., and Margarett Ellison, M.D. I. CLINICAL HISTORY: 49-year-old gravida 4, para 4 female presenting at the Gynecology/Oncology Clinic, Kern Medical Center, on 01-20-05, with the chief complaint of vaginal bleeding for seven months, PTA. Antecedent Pap smear, 06-16-04 reported as showing endometrial adenocarcinoma. Endometrial biopsy on 01-07-05 was reported as "mildly" differentiated endometrioid adenocarcinoma with cervical biopsy reported as squamous cell carcinoma. Radical hysterectomy with bilateral salpingooophorectomy, bilateral pelvic and periaortic lymph node dissection was scheduled on or about 02-10-05. II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: The patient was admitted to Kern Medical Center on 02-10-05 for scheduled radical hysterectomy. Intraoperative Pathology Consultation Diagnosis - Frozen Section Diagnosis Uterus, Cervix, Bilateral Ovaries and Fallopian Tubes: - Uterus and Cervix, 182 grams, received. Primary endometrial adenocarcinoma (grade 2), with endocervical and lower uterine segment extension. - Neoplasm infiltrates approximately 20% of the myometrial wall thickness. The patient tolerated the surgery well and left the OR and subsequent recovery in stable condition. Postop hospital course for 8 days was eventful with respect to postop moderate normochromic, normocytic anemia requiring four units of packed RBCs and bilateral lower lobe pneumonia with pleural effusions at day 3 - 4 postop. The remainder of the patient's hospital course was fairly uneventful and she was discharged home on day 8 (02-18-05), with instructions for a scheduled postop visit at the Ob/Gyn Clinic in one week.

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III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-05-923; 02-10-05, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-22-06 A. UTERUS, CERVIX, BILATERAL FALLOPIAN TUBES, AND OVARIES:

-

Villoglandular endometrioid adenocarcinoma exhibiting composite well moderate and poorly differentiated carcinoma components analogous to a high-grade infiltrating endometrioid adenocarcinoma; FIOO III. - Lymphovascular space invasion by tumor is identified. - Tumor penetrates 35% of the mural thickness of the uterine wall. - High-grade adenocarcinoma involves the upper aspects of the endocervical canal ( proximal endocervical canal ) - Paracervical / paraendometrial margins of hysterectomy are free of tumor. - Deeply penetrating adenomyosis - Nabothian cysts; distal endocervical canal mucosa. Squamous metaplasia; transitional zone of cervix. - Well-glycogenated unremarkable exocervical squamous mucosa. - Representative sections of histopathologically unremarkable left and right ovaries and fallopian tubes. B. VAGINAL MARGIN:

-

Histopathologically unremarkable squamous epithelial-lined vaginal mu~osa; negative for malignancy.

C. RIGHT PELVIC LYMPH NODES:

-

Benign reactive lymph nodes ( 10).

D. RIGHT AORTIC LYMPH NODES:

-

Benign reactive lymph nodes ( 4 ).

E. LEFT PELVIC LYMPH NODES:

-

Benign reactive lymph nodes ( 6 ).

F. PERIAORTIC LYMPH NODES:

-

Benign reactive lymph nodes ( 3 )

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IV. EXTRAMURAL CONSULTATION OPINION - DR. LYDIA BALATIANFLORES, GENZYME IMPATH LABORATORIES, LOS ANGELES, CALIFORNIA ( THEIR CONSULTATION # LA-05-007015; 02-21-05 ):

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I

-

I

Moderately differentiated adenocarcinoma of the endometrium associated with a poorly differentiated carcinoma, with necrosis and hemorrhage. ( Refer to extensive immunohistochemistry tumor histiogenesis marker profile analysis for your further edification ).

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V. REVIEWING PATHOLOGIST'S SUMMARY COMMENT:

~

I

This pathologist concurs with the final pathology diagnosis as rendered by the initial examining pathologist.

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

I

I

I

CASE #: C-04-28 UNIT #: KOOOI097368 ACCT #: K0422600627 ATTENDING PHYSICIANS: Joseph Mansour, M.D. ,Basem Bernaba, M.D., William Roy, M.D.

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II

I. CLINICAL HISTORY: 34-year old female,GO, PO, referred to the Kern Medical Center for gynecologic followup, status post laparoscopic ovarian cystectomy 3-5-04 performed in Mexico. Referring diagnosis: serous cystadenocarcinoma of low malignant potential. Consultation diagnosis: DJ, Staff Pathologist, Kern Medical Center, Bakersfield, California. Case #: P-04-410, their consultation case #: C-04-28. A. Clinical Cyst Fluid, Left Ovary (P-04-410): Hypercellular proteinaceous substance with limited epithelial cells and mildly Atypical. B. Clinical Cyst, Left Ovary (P-04-41O, Consultation Case #: P-04-28): Proliferating borderline serous tumor of the ovary, high grade (non-invasive micropapillary serous carcinoma ).

II. EXTRAMURAL CONSULTATION OPINION, DR. JUAN FELIX, WOMEN'S AND CHILDREN'S HOSPITAL, KECK SCHOOL OF MEDICINE, UNIVERSITY OF SOUTHERN CALIFORNIA, LOS ANGELES, CALIFORNIA

LEFT OVARIAN CYST: Cyto / histomorphologic findings diagnostic of a serous tumor of low malignant potential. Comment:

I find no evidence for the diagnosis of micropapillary carcinoma.

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III. EXTRAMURAL CONSULTATION REVIEW, KERN MEDICAL CENTER, CONSULTATION CASE: C-04-28; 8-17-04; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA

The reported 14 slides of this cystic left ovary, consultation case C-04-28, are not available for microscopic evaluation. I see little substantive difference in the initial reported consultation opinion rendered by Dr. Jadwin, as a proliferating borderline serous tumor of the ovary, high grade (non-invasive micropapillary serous carcinoma) and that rendered by Dr. Juan Felix at the University of Southem California, Keck School of Medicine reported as a serous tumor of low malignant potential with no evidence for the diagnosis of micropapillary carcinoma. As reported by the Borderline Ovarian Tumor Workshop, Bethesda, Maryland, August 27 - 28,2003, published as an editorial in Human Pathology, volume 35, # 8, August, 2004, some participants objected to the use of the term "micropapillary serous carcinoma" (MPSC) and nonmicropapillary serous carcinoma (NMPSC) as they believe these lesions to be akin to the routine - typical serous borderline ovarian tumors (S-BOT). Micropapillary S-BOT and typical S-BOT's show the same risk factors for recurrence and have similar prognoses. Some participants therefore objected to using terms implying potential for distant spread (carcinoma), i.e. preferring to call these lesions serous borderline tumors with micropapillary features; not otherwise specified. By definition showing at least one microscopic area, uninterrupted micropapillary growth exceeding rel="nofollow">5mm and lacking stromal micro / macro invasion constituted a serous borderline tumor with micropapillary featUres. Not having the slides for review precludes this reviewer's substantiating the presence or absence of a nonhierarchial papillary mucosal architecture and / or micropapillary structures whose length exceeds five times their width. As you can see little is to be gained by "splitting hairs" in this case. Furthermore, a micropapillary / cribriform ml,1cosal architecture may co-exist with typical S-BOT. Tumors with more focal micropapillary features, i.e. measuring less than 5 mm in one dimension, are typically classified as S-BOT. Many studies have found no difference in survival for a worse survival in patients with micropapillary serous borderline ovarian tumors vs S-BOT's.

w~ ~Co..th-BURN, M.D.

WILLIAM J. C CarpiolKem/wjclllcl8-9-Q6

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WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: S-04-6857; 11-18-04 UNIT #: K0000633431 ACCT #: K0432100805 ATTENDING PHYSICIANS: William J. Roy, M.D., Nbalia Soumah, D.O.

I. CLINICAL HISTORY: 40-year-old female with a diagnosis of cervical adenocarcinoma, status post LEEP conization procedure with pathology reviewed at an outside institution, not otherwise specified. The patient was scheduled for radical hysterectomy, bilateral salpingooophorectomy, bilateral pelvic node dissection, with suprapubic catheter placement. Tentative date of surgery 11-18-04.

II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: The patient was admitted to Kern Medical Center on 11-18-04 for a radical hysterectomy, bilateral salpingo-oophorectomy, and bilateral pelvic node dissection, which was performed without complication. Gross Intraoperative Pathology Consultation Opinion:

A. Cervix, uterus, bilateral ovaries and tubes: - No gross residual tumor in cervix. - Frozen section diagnosis: Residual tumor seen microscopically on frozen section slide. B. Right pelvic lymph node: Frozen section diagnosis: Half of the largest lymph node and four smaller lymph nodes are negative for metastasis. The patient's postoperative course was uneventful x 4 days and the patient was discharged to home on 11-22-04 with follow-up medical visits scheduled in clinic.

III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-04-6857; 11-18-04, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-14-06

0025965 0025965

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A. UTERUS AND ADNEXA (TOTAL ABDOMINAL HYSTERECTOMY):

Invasive adenocarcinoma of the cervix; endocervical type; submucosal depth of invasion 8 nun. There is no definitive microscopic evidence for angio - lymphovascular invasion by tumor. Isolated endocervical glands are involved by squamous carcinoma in situ (CIS). . The paracervical soft tissue margins of hysterectomy are free of tumor. Well-glycogenated exocervical squamous mucosa; negative for HPVinduced epithelial virocytopathic change, mucosal atypia of malignancy. Histopathologically unremarkable early secretory phase endometrium; endometrial cavity. Solitary diminutive / microscopic cellular leiomyoma; endometrium. Histopathologically unremarkable uterine serosa. Multiple follicular cysts and involuting corpus luteum cysts; right and left ovaries. Representative cross sections of histopathologically unremarkable right and left fallopian tubes. B. RIGHT PELVIC LYMPH NODE DISSECTION:

Benign reactive lymph nodes ( 7 ). C. LEFT PELVIC LYMPH NODE DISSECTION:

Benign reactive lymph nodes ( 15 ).

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT

This reviewing pathologist agrees with the final diagnoses as rendered by the original pathologist.

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: 8-05-592 K0001141122 UNIT #: ACCT#: K0502700459 ATTENDING PHYSICIANS: William Roy, M.D., Fangluo Liu, M.D.

I. CLINICAL HISTORY: 49-year old female, status post conization of cervix with a diagnosis of adenocarcinoma ofthe endocervix. CT of pelvis (12-04) - no pelvic mass or adenopathy. II. ONCOLOGIC SURGERY: TAR, lymph node dissection (1-27-05). III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE #: S-05-592; 1-27-05; WILLIAM J. COLBURN, M.D. , WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-9-06 A. RIGHT PELVIC LYMPH NODE DISSECTION: -

benign reactive lymph nodes (9).

B. LEFT PELVIC LYMPH NODE DISSECTION: benign reactive lymph nodes ( 10 ). C. UTERUS, CERVIX, BILATERAL FALLOPIAN TUBES AND OVARIES: endocervical adenocarcinoma in situ ( AI8 ) exhibiting retrograde cancerization of endocervical glandular apparati; the bulk ofthe tumefaction concentrated at the transition zone of the cervix. an accompanying microinvasive tumor component is identified invading to a maximum depth of 4 mm. -

scattered endocervical gland necks and glands are involved by moderate dysplasia ( CIN II / HSIL ). 0025967

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i

i

there is no evidence for angio-Iymphovascular invasion by tumor. granulomatous inflammation; status post conization of the cervix. the most distal ectocervical margin of hysterectomy is free of tumor. -

inactive endometrium.

-

corpus luteum cyst; left ovary.

-

histopathologically unremarkable right ovary.

- representative tangential/cross sections of histopathologically unremarkable left and right fallopian tubes.

IV. PRIOR EXTRAMURAL CONSULTATION OPINION - DR. JUAN FELIX, WOMEN'S & CHILDREN'S HOSPITAL, DEPARTMENT OF PATHOLOGY, KECK SCHOOL OF MEDICINE, UNIVERSITY OF SOUTHERN CALIFORNIA, LOS ANGELES, CALIFORNIA DIAGNOSIS: UTERINE CERVIX: - extensive "in situ~~ adenocarcinoma of the cervix and several foci of invasive adenocarcinoma of the cervix (greatest depth of invasion - 4 mm ). - no vascular space involvement is identified. - multiple lymph node specimens reveal no evidence for malignancy.

V.

ANATOMIC PATHOLOGY SUMMARY COMMENT:

This reviewing pathologist concurs with the initial pathologist~s final diagnoses.

Narinderlkem/\\jc/llc/8-10-o6

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546 CASE #: S05-2186; 4-8-05 UNIT #: KOOOl145729 ACCT #: K0509700494 ATTENDING PHYSICIANS:

William J. Roy, M.D., Chang Lee, M.D.

I. CLINICAL HISTORY: 54-year old female G3, P3, with last LMP 2001, presenting with chief complaint ofpostmenopausal bleeding ( x 6 weeks). Pertinent Past Medical History: Carcinoma, status post colectomy 2000 (Dukes' B) without adjuvant treatment. Reported low AlCC stage disease. Recent colonoscopic examination: date and time unknown, reported as an "extrinsic" left sided colonic pelvic mass. Abdominal CT (2-15-05) revealed a large mixed density predominantly cystic pelvic mass arising apparently from the left with a hypodense ovoid mass in the right adnexa suggestive of a dermoid. The patient was scheduled for a total abdominal hysterectomy, bilateral salpingo-oophorectomy with possible modified posterior exenteration, possible bilateral pelvic retro-peritoneallymph node dissection omentectomy, peritoneal biopsies and tumor debulking as indicated. II. GYNECOLOGIC SURGERY I HOSPITAL COURSE: The patient was admitted to Kern Medical Center on 4-7-05 where an exploratory laparotomy was performed resulting in a TAH-BSO and appendectomy. INTRAOPERATIVE CONSULTATION DIAGNOSIS: Right ovary and fallopian tube (gross only): ovarian cyst, likely a dermoid cyst or cystic teratoma, mature. FROZEN SECTION DIAGNOSIS: - ovarian stroma, no cyst lining or germ cell elements identified - further diagnosis pending routine tissue processing. Left ovary and fallopian tube (gross only): largely necrotic hemorrhagic mass; no malignant neoplasm identified. FROZEN SECTION DIAGNOSIS: - smaller nodule with adenocarcinoma, high grade, possible representing metastases to a lymph node - further diagnosis pending routine processing. The patient tolerated the procedure well and left the operating I recovery room in good condition. The remainder of her hospital course was relatively uneventful and the patient was discharged to her home on 4-14-05 and instructed to keep her scheduled appointment at the Women's Health Center in one week post-discharge. 0025969 0025969

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III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER CASE # S05-2186; 4-8-05; WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, CALIFORNIA; 8-23-06 A. RIGHT OVARY AND FALLOPIAN TUBE: - mature cystic teratoma ( dennoid cyst) and ofnote, residing within the ovarian corticular substance is a microscopically demonstrable 5.5 mm focus ofmetastatic adenocarcinoma; high grade, of probable colonic epithelial origin. - representative cross sections histopathologically unremarkable right fallopian tube. B. LEFT OVARY AND FALLOPIAN TUBE: - metastatic high grade colonic adenocarcinoma exhibiting extensive tumoral necrobiosis (Krukenberg's tumor); left ovary and fallopian tube.

C. RIGHT PELVIC LYMPH NODES: - benign reactive lymph nodes ( 21 ). D. LEFTPELVICLYMPHNODES: - benign reactive lymph nodes (5 ). E. LEFT PARA-AORTIC LYMPH NODES: - benign reactive lymph nodes ( 16 ). F. APPENDIX: - representative sections vennifonn appendix showing reactive serous surface / peritoneal change, well established fibromembranous adhesions without other clinically significant histopathologic abnonnality. G. LEFT URETERAL NODULE: - metastatic high grade colonic adenocarcinoma further eliciting a marked reactive stromal desmoplastic response. H. BIOPSY, URINARY BLADDER: - acute - chronically inflamed transitional epithelial lined bladder mucosa showing nests of Von Brunn / cystiticcystica; negative for significant urothelial cells, atypia, dysplasia or malignancy. - there is no evidence for metastatic tumor. I. UTERUS AND CERVIX: - metastatic high grade colonic adenocarcinoma; lower uterine segment and left parametrium. 0025970 S05-2186; 4·8-05

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inactive basilar endometrium showing subsurface mild glandular cystic transfonnation. Representative transmural sections ofhistopathologically unremarkable myometrium and overlying serosa. Nabothian cysts and squamous metaplasia; transition zone of cervix. histopathologically unremarkable proximal endocervical canal and well glycogenated exocervical squamous mucosa. gross absence of right and left adnexal structures (refer to parts A and B for your further edification ).

J. OMENTUM: - reactive serous surface change / fibromembranous adhesions; negative for metastatic tumor.

IV. SURGICAL PATHOLOGY CONSULTATION REPORT, UCLA MEDICAL CENTER, LOS ANGELES, CALIFORNIA; THEIR SURGICAL PATHOLOGY #: R05-07703; 5-12-06

A. RIGHT OVARY AND FALLOPIAN TUBE: adenocarcinoma consistent with metastatic colorectal adenocarcinoma. - mature cystic teratoma. B. LEFT OVARY AND FALLOPIAN TUBE: - metastatic adenocarcinoma involving fallopian tube and ovary. C. RIGHT PELVIC LYMPH NODES: - 21 lymph nodes negative for metastatic tumor. D. LEFT PELVIC LYMPH NODES: 5 lymph nodes, negative for metastatic tumor. E. LEFT PARA-AORTIC LYMPH NODES: - 16 lymph nodes, negative for metastatic tumor. F. APPENDIX: appendix with no pathologic diagnosis. - no tumor seen. G. LEFT URETERAL NODULE: - metastatic adenocarcinoma. H. BLADDER BIOPSY: - urothelial mucosa with mild atypia. - no definitive tumor seen.

0025971 S05-2186; 4-8-05

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I. UTERUS AND CERVIX: metastatic adenocarcinoma found in the subserosa of the lower uterine segment and involving the left parametrium. chronic endocervicitis. endometrium with cystic atrophy. J. OMENTUM: no tumor seen.

V. SUMMARY REVIEW

This pathologist concurs with the final diagnosis as rendered by the initial examining pathologist.

w

t1.t.LnMr,

WILLIAM J. C

~BURN, Co fLt=.....M.D.

Wheatlkemlwjclllcl8-24-06

0025972 S05-2186; 4-8-05

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WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546 CASE #: S-06-91 UNIT # KOOO1100262 ACCT #: K0600600245 ATTENDING PHYSICIANS: Antonio Garcia, M.D., George Alkhouri, M.D. DATE: 1-6-06

I. CLINICAL HISTORY:

47-year old female with history of breast cancer since 3-02. Tissue diagnosis: infiltrating duct carcinoma 2.5 cm. with clear margins and 5 / 20 lymph nodes positive for metastatic tumor. mc breast cancer tumor marker profile: ER- positive, PRpositive, Her2/neu - positive. Status post chemotherapy with CAP and Tamoxifen. Recurrence of breast cancer ( right breast) via ultrasound-guided biopsy ( 2-05). CT scan of the chest 8-05 revealed bony osseous metastasis at T-7 through T-11. II. GYNECOLOGIC HISTORY:

LMP 2002. Thin prep pap smear (005-3131 ) - ASCUS. HPV test utilizing 2nd generation viral captured technique reported as positive for high-risk HPV serotypes. Antecedent endocervical curettings ( 8-05-7868 ) - normal histopathology.

III. PATHOLOGY CONSULTATION REVIEW, SURGICAL PATHOLOGY CASE: 2-06-91; 1-6-06, KERN MEDICAL CENTER, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA, 8-04-06

A. CERVICAL BIOPSY, 6:00 POSITION: - atypical endocervical hyperplasia; negative for HPV-induced epithelial virocytopathic effect, mucosal dysplasia or malignancy ( x 6; sections reviewed 6). B. ENDOCERVICAL CURETTAGE: - multiple disrupted poorly preserved strips of endocervical canal mucosa showing atypical squamous cells; favor dysplasia ( CIN I / LSIL ). there is no evidence for high grade mucosal dysplasia or malignancy.

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c I

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT: This reviewing pathologist concurs with the diagnoses rendered by the initial pathologist of record.

w~

.

WILLIAMJ.

LBURN,M.D.

Villarea1/kern - wjc/llc/8-4-2006

S-06-91

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•

-It

WILLIAM J. COLBURN, M.D. - 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE: S-05-2246 K0001146465 UNIT #: ACCT #: K0510100660 ATTENDING PHYSICIANS: Miguel Lascano, M.D., Nbalia Soumah, D.O.

I. CLINICAL HISTORY: 58-year old G3, P3, female, referred to Kern Medical Center 3-21-05 with a chief complaint of abdominal pain and pelvic mass. Pertinent past medical history: uterine fibroids 1994 to the present. Pelvic ultrasound reveals an enlarged uterus, multiple myomas and the right ovary was noted to be predominantly cystic measuring up to 13.2 cm in maximum dimension, appearing complex and septate. The left ovary was not visualized. The patient was scheduled for total abdominal hysterectomy, bilateral salpingo-oophorectomy on 4-12-05. II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: Surgical procedure: TAH-BSO 12-05 without intraoperative / immediate post-operative complications. FROZEN SECTION DIAGNOSIS: Right ovary: - ovary ( 1630 grams) with papillary serous cystadenoma of uncertain malignant potential ( borderline malignant potential ).

GROSS INTRAOPERATNE DIAGNOSIS: - fallopian tube without gross pathological features. - further diagnosis pending routine processing.

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III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE #: S -05-2246; 4-12-05, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-8-06 A. CLINICAL MASS, RIGHT OVARY, EXCISION: - complex multilocular serous cystadenofibroma with evolution to serous borderline ovarian tumor (S-BOT). - a micro- / macro-invasive tumor component is not identified. - the peritoneal serosal surface is uninvolved by tumor. - representative tangential sections of histopathologically unremarkable distal fallopian tube.

B. HERNIA SAC, SITE NOT SPECIFIED; HERNIORRHAPHY: - mesothelial lined fibrovascular and adipose tissue consistent with an origin from a hernia sac; surgical repair of umbilical hernia.

C. UTERUS AND LEFT ADNEXA: - benign leiomyomata exhibiting degenerating architectural features. - inactive atrophic endometrium; lower uterine segment. - squamous metaplasia; transitional zone of cervix. - unremarkable well glycogenated exocervical squamous mucosa. - multiple cortical based serous cystic inclusion rests; left ovary. - representative cross section of histopathologically unremarkable left fallopian tube. - gross absence of right and left adnexal structures ( refer to part "A" for your further edification ).

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ANATOMIC PATHOLOGY SUMMARY COMMENT:

This reviewing pathologist agrees with the initial pathologist's diagnosis.

.

W~ WILLIAM J. C

~

~ BURN, M.D.

Martinezlkemlwjc/lIcl8-9-o6

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WILLIAM J. COLD"URN, M.D. 21114 Vanowen Street, Canoga Park, CA. 91303 Telephone: 818-708-5528 Fax: 818-708-5546

CASE #: 8-05-381; 1-14-05 UNIT #: K0001138812 ACCT #: K0501400249 ATTENDING PHYSICIANS: Preete Bhanot, M.D., Wi111iam Roy, M.D.

I. CLINICAL HISTORY: 47-year old female G5, PI with a diagnosis of well differentiated keratinizing squamous carcinoma with superficial invasion, dx, 12-16-04. Biopsies at Kern Medical Center; Gyn-oncology Clinic performed 1-14-05 consisting ofpap smear, endocervical curettage and colposcopic biopsy of the cervix and vulva. The biopsy results reveal a superficially invasive squamous carcinoma with microinvasion to 0.6 mm; 3:00 position, vulva VIN I; 7:00 position, vulva. The patient was scheduled for a wide left radical excision of the vulva, possible vulvectomy, possible left groin, possible left inguinal lymph node dissection. II. GYNECOLOGIC SURGERY I HOSPITAL COURSE: Radical unilateral vulvectomy and CUSA contralateral side, performed 4-21-05. Intraoperative frozen section margin of radical vulvectomy interpreted as negative for malignancy or lesion. Remainder of hospital course noted to be unremarkable.

III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-05-381; 1-14-05. W.J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 8-4-06 A. Cervical Biopsy, 1200 Position: serial sections well-glycogenated exocervical squamous mucosa without definitive microscopic evidence for HPV-induced epithelial virocytopathic effect, mucosal dysplasia or malignancy; levels (x 2; total sections 6 ). B. Endocervical Curettage: - multiple strips of histopathologically unremarkable endocervical canal mucosa exhibiting reserve cell change I immature squamous metaplasia; negative for HPV-induced epithelial virocytopathic effect, mucosal dysplasia or malignancy.

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C. Vulvar Biopsy, 3:00 Position: - YIN II - III with transition to squamous carcinoma in situ. Of note: a 0.6 mm microinvasive superficial dermal tumor component is identified. There is no evidence for dermal angio-Iymphovascular invasion by tumor. D. Vulvar Biopsy, 7:00 Position: vulvar intraepithelial neoplasia; YIN I - II. an accompanying microinvasive tumor component is not identified.

IV. ANATOMIC PATHOLOGY SUMMARY COMMENT: Anatomic pathology correlation - this reviewing pathologist agrees in toto with the initial pathologist's diagnoses; parts A - D inclusive.

W.t.J..luJ,., ~ Ct.tlL----

WILLIAM J. C

BURN, M.D.

Unkrich-wjc-l1c-8-4-2006

0025979 S-05-381; 1-14-05

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WILLIAM J. COLBURN, M.D. 21114 Vanowen Street, Canoga Park, CA 91303 Telephone: 818-708-5528 Fax: 818-708-5546 CASE #: S-06-728; 02~ 14-06 UNIT #: K0000800794 ACCT #: K0604100439 ATTENDING PHYSICIANS: William 1. Roy, M.D., Tony Hoang, M.D. I. CLINICAL HISTORY: 60-year-old Caucasian female admitted to the Gyn~Oncology Service, Kern Medical Center, with a history of bilateral adnexal masses. Tumor markers CEA and CA-125 were noted to be elevated. Colonoscopy at an outside facility showed diverticular disease with no evidence for malignancy. An upper GI endoscopic examination was not performed. The patient was scheduled for an exploratory laparotomy on 02-1006. II. GYNECOLOGIC SURGERY / HOSPITAL COURSE: Exploratory laparotomy was performed 02-10-06. Upon entering the peritoneal cavity, the surgeons encountered approximately 10.6 liters of ascitic fluid. Exploration of the abdomen and pelvis revealed peritoneal cake with diffuse peritoneal carcinomatosis. The right and left ovaries appeared massively enlarged, each measuring approximately 10.0 cm in maximum diameter. Further exploration of the upper gastrointestinal tract revealed what was presumed to represent a primary gastric neoplasm. A subsequent omentectomy and total abdominal hysterectomy, bilateral salpingo-oophorectomy was performed. Intraoperative frozen section diagnosis was interpreted as signet ring cell carcinoma; rule out primary gastric carcinoma. The patient tolerated the procedure well and left the operating room in stable condition. The patient remained hospitalized for approximately two weeks and was discharged toa skilled nursing facility on 02-23-06. III. EXTRAMURAL CONSULTATION REVIEW, KERN COUNTY MEDICAL CENTER, CASE S-06-728; 02-14-06, WILLIAM J. COLBURN, M.D., WOMEN'S CANCER CENTER, TARZANA REGIONAL MEDICAL CENTER, TARZANA, CALIFORNIA; 08-12-06 A. LEFT OVARY AND FALLOPIAN TUBE: -

Metastatic signet ring cell carcinoma (mucinous adenocarcinoma) of probable primary upper gastrointestinal tract mucosal origin.

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Representative cross section left fallopian tube shows a remnant of mural mesonephric I paramesonephric cystic remnants without other significant histopathologic abnormality. B. RIGHT OVARY AND FALLOPIAN TUBE:

Metastatic signet ring cell carcinoma (mucinous / colloid adenocarcinoma) of probable upper gastrointestinal tract mucosal origin. Cross section of right fallopian tube shows extramural presence of remnant mesonephric / paramesonephric duct apparati; otherwise there is no significant histopathologic abnormality. C. OMENTUM, UTERUS AND CERVIX:

-

Metastatic mucinous I colloid adenocarcinoma exhibiting regional prominent signet ring cytomorphologic features; omentum. Atrophic endometrium; endometrial cavity, corpus uterus. Superficial adenomyosis; myometrium. Representative sections of histopathologically unremarkable uterine serosa. Nabothian cyst formation and squamous metaplasia; transition zone of cervix. Well-glycogenated histopathologically unremarkable exocervical squamous mucosa. Gross absence of right and left adnexal structures (refer to A and B for your further edification).

IV. REVIEWING PATHOLOGIST'S SUMMARY COMMENT:

This pathologist agrees with the original pathologist's microscopic and diagnosis as rendered.

W

,Ill",.",

~~

WILLIAM J. CHURN, M.D.

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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

EXHIBIT 24

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

IRWIN EVERETT HARRIS, M.D.

17

Wednesday, August 13, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

HarrisI1

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1

10:07:03

1 there was a quality concern.

2

10:07:06

2

3

10:07:09

3 reviewed by -- about these cases complained about by

4

10:07:11

4 Dr. Roy?

5

10:07:12

5

6

10:07:15

6 ever was told.

7

10:07:19

7

8

10:07:22

8 be told he was being peer reviewed on these cases

9

10:07:24

9 reported by Dr. Roy?

Q.

A.

Q.

A.

When was Dr. Jadwin told he was being peer

I don't remember.

I don't even know if he

Why wouldn't he -- why wouldn't Dr. Jadwin

10

10:07:25 10

11

10:07:29 11 over Dr. Jadwin's quality --

12

10:07:32 12

Q.

So when you say --

13

10:07:33 13

A.

-- from the peer review mechanism.

14

10:07:37 14

Q.

Do you think that's fair?

15

10:07:38 15 fair to peer review somebody without telling them?

16

10:07:41 16

A.

Oh, absolutely.

17

10:07:41 17

Q.

Why is that?

18

10:07:43 18

A.

Because unless there's evidence that there

19

10:07:47 19 is indeed a quality concern, it is purely private and

20

10:07:51 20 confidential among those selected few who have the

21

10:07:57 21 ability to determine whether or not there's a quality

22

10:08:01 22 issue.

23

10:08:02 23

24

10:08:04 24 conducted on the cases complained about by Dr. Roy,

25

10:08:08 25 cases -- Dr. Jadwin's cases were sent out to outside

Q.

I had no and still do not recall any concern

Do you think it's

So in Dr. Jadwin's case, peer review was

HarrisI1

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1

10:11:18

1 attention that there were competence issues with

2

10:11:21

2 Dr. Jadwin?

3

10:11:22

3

A.

Prior to his return October 4th, 2006?

4

10:11:27

4

Q.

Actually, let me -- what about after his

5

10:11:29

5 return to the hospital?

6

10:11:33

6 the hospital October 4 of 2006, were you aware of any

7

10:11:36

7 competency issues regarding Dr. Jadwin?

8

10:11:38

8

9

10:11:40

9 that time.

A.

No.

After Dr. Jadwin returned to

Q.

I believe there might have been concerns at

10

10:11:42 10

11

10:11:45 11 concerns?

12

10:11:54 12

13

10:12:05 13 I'm in a bit of an awkward position because normally

14

10:12:14 14 I ask for the evidence in order to pursue something.

15

10:12:21 15 So anything that I say is hearsay, but the hearsay

16

10:12:27 16 was is that some of the readings were probably not

17

10:12:30 17 accurate.

18

10:12:31 18

19

10:12:34 19 were not accurate?

20

10:12:35 20

A.

That's what I believe the issue was.

21

10:12:37 21

Q.

Was there a peer review conducted on that?

22

10:12:40 22

A.

No.

23

10:12:42 23

Q.

And why not?

24

10:12:43 24

A.

I don't believe there was sufficient time

25

10:12:45 25 between the date of his return and when he was no

A.

And what was -- what were some of these

Q.

The concern was that -- that -- well, again,

Some of Dr. Jadwin's pathology diagnoses

Not that I'm aware of.

HarrisI1

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

Document 277-3

Filed 12/01/2008

Page 69 of 191 59

1

10:12:50

1 longer providing service to allow that to occur.

2

10:12:55

2

3

10:12:57

3 about Dr. Jadwin's diagnoses potentially being

4

10:12:59

4 incorrect after October 4 of 2006?

5

10:13:02

5

6

10:13:04

6 I said that it was hearsay is that I only operate

7

10:13:08

7 when I have evidence specifically to guide the peer

8

10:13:14

8 review process, and I don't believe that I had any.

9

10:13:16

9

Q.

A.

Q.

Who made these -- who raised these concerns

I don't recall.

Okay.

And one of the reasons why

Who told -- how did you learn about

10

10:13:18 10 these concerns about Dr. Jadwin's competence after

11

10:13:22 11 October 4, 2006?

12

10:13:23 12

A.

I don't recall.

13

10:13:25 13

Q.

You don't recall who told you?

14

10:13:27 14

A.

No.

15

10:13:27 15

Q.

Could it have been Dr. Philip Dutt?

16

10:13:31 16

A.

I -- it could have been, yes.

17

10:13:31 17

Q.

Could it have been --

18

10:13:36 18

A.

But it would not have been him exclusively.

19

10:13:39 19

Q.

Well, who does pathology interact with?

20

10:13:43 20 mean, there is a pathology department itself.

21

21

A.

Um-hmm.

22

10:13:45 22

Q.

Correct?

23

10:13:45 23

A.

The -- the -- the surgeons and other

24

10:13:49 24 physicians that rely on Dr. Jadwin's consultative

25

10:13:55 25 opinions also are knowledgeable of his work.

HarrisI1

I

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

Q.

Document 277-3

Filed 12/01/2008

Page 70 of 191 60

1

10:14:01

1

2

10:14:03

2 have been raising concerns about Dr. Jadwin's

3

10:14:06

3 diagnoses being incorrect?

4

10:14:07

4

A.

I don't recall, but possibly.

5

10:14:10

5

Q.

Okay.

6

10:14:11

6 would know about these competency issues being raised

7

10:14:15

7 about Dr. Jadwin after October 4th --

8

10:14:17

8

9

10:14:18

9 colleagues and -- and the other physicians with whom

A.

And they were the ones you believe who may

Who would recall?

We just discussed that.

Do you know who

It would be his

10

10:14:24 10 he works in the institution.

11

10:14:24 11

12

10:14:26 12 were these complaints directed, these colleagues?

13

10:14:29 13

A.

You'll have to rephrase the question.

14

10:14:31 14

Q.

You said there were colleagues and various

15

10:14:33 15 people that were raising competency issues about

16

10:14:36 16 Dr. Jadwin's pathology diagnoses after October 4,

17

10:14:39 17 2006.

18

10:14:39 18

19

10:14:41 19 directed?

20

10:14:43 20

A.

Me.

21

10:14:43 21

Q.

To you?

22

10:14:44 22

A.

Yeah.

23

10:14:45 23

Q.

And you can't recall -- well, how many --

24

10:14:48 24 how many people were complaining about Dr. Jadwin?

25

10:14:50 25

Q.

Well, I guess what I'm asking is to whom

To whom would those complaints have been

A.

More than one.

HarrisI1

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

A.

Document 277-3

Filed 12/01/2008

Page 71 of 191 192

1

15:00:50

1

2

15:00:54

2 returned from his leave of absence?

3

15:00:56

3

4

15:00:57

4 tell me.

5

15:00:58

5

A.

Well, I don't think they are.

6

15:00:59

6

Q.

Right.

7

15:01:00

7

A.

If there is -- what I was trying to say was

8

15:01:02

8 if any of these cases were cases that were processed

9

15:01:06

9 and completed after he returned from his leave of

Q.

Were any of these cases done after he

I don't know.

Take a look.

You have to

10

15:01:08 10 absence I cannot speak to those, but any before his

11

15:01:12 11 leave of absence there was no quality concern.

12

15:01:16 12 said that four times now.

13

15:01:19 13 concern over the cases prior to October of 2006.

14

15:01:23 14

15

15:01:26 15 tell me if any of the cases --

16

15:01:28 16

17

15:01:31 17 to do, but I'd be happy to review the document.

18

15:01:51 18

19

15:01:54 19 help me out with some of these dates because I don't

20

15:01:57 20 fully understand them.

21

15:01:59 21

Q.

You mean you're finding them illegible or --

22

15:02:02 22

A.

No.

23

15:02:04 23 and completed 2/17/06, and I don't know whether that

24

15:02:07 24 was before or after the leave of absence or during.

25

15:02:10 25

Q.

A.

Okay.

I've

There was no quality

So can you take a look at this and

Well, that was the job that you're supposed

Can I ask the -- my counsel next to me to

Q.

There's a cervical biopsy here 1/6/06

You don't know -- you're confused about the

HarrisI1

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

Document 277-3

Filed 12/01/2008

Page 72 of 191 199

1

15:22:06

1

Q.

Remember why you apologized to Dr. Jadwin?

2

15:22:09

2

A.

Yeah.

3

15:22:10

3

Q.

Okay.

4

15:22:13

4 Dr. Jadwin?

5

15:22:14

5

6

15:22:18

6 comments are sincere.

7

15:22:22

7

8

15:22:24

8 insincere or fake or meant to please anybody.

9

15:22:28

9 Correct?

A.

Q.

Yes.

A.

Was it a sincere apology to

I -- I would like to think that all my

You would never do anything that was

10

15:22:29 10

11

15:22:34 11 integrity and honesty as my major guiding light.

12

15:22:44 12

13

15:22:49 13 don't lie.

14

15:22:51 14

15

15:22:55 15 gray, and I'm not going to answer that question.

16

15:22:58 16

Q.

I'm asking if you lie, Doctor.

17

15:22:59 17

A.

There are all degrees of telling the truth.

18

15:23:03 18 Some people consider omission a lie.

19

15:23:08 19 sorry.

20

15:23:11 20 question you just asked me that I'm not going to

21

15:23:14 21 respond to.

22

15:23:14 22

23

15:23:16 23 Dr. Harris?

24

15:23:19 24

A.

I'm not going to play this game.

25

15:23:20 25

Q.

You're not going to answer?

Q.

A.

Q.

I try not to, no.

I -- I -- I try to have

So you wouldn't lie, for instance?

You

Right?

That is an absolute that has many shades of

So -- I'm

This is a hypothetical, philosophical

So do you engage in shades of lies,

HarrisI1

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

Okay.

Filed 12/01/2008

Page 73 of 191 232

1

16:07:49

1

2

16:07:53

2 but it was something to the effect of what you just

3

Q.

Document 277-3

You don't recall the exact wording,

3 said.

4

16:07:54

4

A.

Paraphrased.

That's correct.

5

16:07:56

5

Q.

Do you recall what Dr. Jadwin said to

6

16:07:59

6 Dr. Kercher?

7

16:08:01

7

A.

No.

8

16:08:04

8

Q.

Did he say anything about -- what about

9

16:08:06

9 Dr. Abraham?

But I remember that it was negative.

10

16:08:06 10

A.

And Dr. Abraham even more so negative.

11

16:08:10 11

Q.

Dr. Abraham was present at that meeting of

12

16:08:12 12 February 22?

13

16:08:13 13

A.

Yes.

14

16:08:14 14

Q.

Okay.

You're sure she was present there?

15

16:08:24 15

A.

Yeah.

I'm pretty sure she was present.

16

16

Q.

Okay.

17

16:08:27 17

A.

Because I remember there was a lot of

18

16:08:29 18 negative things said about her at that meeting.

19

16:08:31 19

20

16:08:34 20 anybody at that February 22 meeting?

21

16:08:38 21

A.

Yeah.

I believe there was.

22

16:08:40 22

Q.

Okay.

Give me some examples, please.

23

16:08:41 23

A.

I think it was offered up as -- as concerns

24

16:08:45 24 and criticism.

25

16:08:53 25 in a constructive manner.

Q.

Was anything negative said to Dr. Jadwin by

It was largely tried to be delivered I suppose there was some

HarrisI1

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

Document 277-3

Filed 12/01/2008

Page 74 of 191 331

1

18:41:58

1 wherein the realm of disruptive physicians, one of

2

18:42:05

2 the problems is is that they often think that they're

3

18:42:08

3 right and right about everything.

4

18:42:15

4 don't know exactly what it means from there.

5

18:42:18

5 know is that disruptive physicians often think that

6

18:42:20

6 they're right and they stick to being right so much

7

18:42:23

7 that they lose the perspectives on collaborative

8

18:42:30

8 aspect of their role.

9

18:42:31

9

And sometimes -- I All I

The second --

10

18:42:31 10

Q.

Sorry.

Can I just interrupt one question.

11

18:42:34 11

12

18:42:36 12 mean that in terms of the formal term, disruptive

13

18:42:40 13 physician as in disruptive physician policy that Kern

14

18:42:43 14 Medical Center has?

15

18:42:43 15

A.

Yes.

16

18:42:44 16

Q.

Was Dr. Jadwin a disruptive physician under

17

18:42:47 17 that policy?

18

18:42:48 18

19

18:42:51 19 that I mentioned about seven hours ago applied to

20

18:42:56 20 Dr. Jadwin, yes.

21

18:42:58 21

22

18:43:01 22 procedure under the disruptive physician policy at

23

18:43:05 23 KMC?

24

18:43:06 24

A.

In essence.

25

18:43:08 25

Q.

Well, why do you say in essence?

When you say disruptive physician, do you

A.

Q.

I considered that the progressive discipline

So you instituted the disruptive physician

HarrisI1

What's the

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

Document 277-3

Filed 12/01/2008

Page 75 of 191 332

1

18:43:10

1 difference?

2

18:43:14

2 then?

3

18:43:14

3

A.

I'm not sure it was formal then.

4

18:43:17

4

Q.

Okay.

5

18:43:21

5 recall --

6

18:43:22

6

7

18:43:25

7 cannot make someone respect you or love you.

8

18:43:29

8 have to earn it by your actions.

9

18:43:32

9

A.

Q.

Are you saying that it was informally,

So at this point you can't really

And the second part of this is that you

Okay.

You

So is it correct to say that both of

10

18:43:34 10 these statements applied to Dr. Jadwin?

11

18:43:36 11

12

18:43:40 12 handwriting out of context, and I'm not sure what it

13

18:43:43 13 applied to.

14

18:43:45 14

15

18:43:46 15 about this Page 494?

16

18:43:48 16

17

18:43:58 17 written.

18

18:43:58 18

19

18:44:02 19 ask that we go off the record at this point so we can

20

18:44:04 20 calculate the time precisely.

21

18:44:10 21

Okay.

22

19:05:08 22

(Discussion off the record.)

23

19:05:08 23

MR. LEE:

24

19:05:50 24 p.m.

25

19:05:52 25

A.

Q.

A.

I'm not sure.

You gave me some of my

So really, you don't have much recollection

I would have to know in what context it was

MR. LEE:

I'm going to ask -- I'm going to

Just one second.

We are off the record at 6:43 p.m.

We're back on the record at 7:05

The deposition will be stopped for now, but

HarrisI1

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

Document 277-3

Filed 12/01/2008

335 Page 76 of 191

STATE OF CALIFORNIA ss. COUNTY OF KERN

I, Susan R. Wood, a Certified Shorthand Reporter in the State of California, holding Certificate No.

6829, do hereby certify that

IRWIN EVERETT HARRIS, M.D., the witness named in the foregoing deposition, was by me duly sworn; that said deposition was taken Wednesday, August 13, 2008, at the time and place set forth on the first page hereof. That upon the taking of the deposition, the words of the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action, nor in any way interested in the result or outcome thereof. Dated this 15th day of August,

2008, at

Bakersfield, California.

susa~-R

N-o.---

WOOD & RANDALL (800) 322-4595

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

Document 277-3

Filed 12/01/2008

Page 77 of 191

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

EXHIBIT 25

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

30

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

Document 277-3

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) Volume II ) Page 336 Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) _____________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

IRWIN EVERETT HARRIS, M.D.

17

Wednesday, August 27, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Erika Addis, CSR No. 11621

HarrisI2

Page 78 of 191 336

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

Document 277-3

Filed 12/01/2008

Page 79 of 191 409

1

10:50:42

1 there that would suggest --

2

10:50:43

2

MR. WASSER:

3

10:50:44

3

MR. LEE:

4

10:50:44

4 BY MR. LEE:

5

10:50:46

5

Q.

-- that would suggest this authority exists?

6

10:50:49

6

A.

I would have to study that particular

7

10:50:51

7 document.

8

10:50:57

8 stuff tenet that the officers of the medical staff

9

10:51:01

9 have the ability to -- in their quality roles to

708.

Sorry.

708.

But I would believe that as a medical

10

10:51:07 10 evaluate and determine whether or not a quality of

11

10:51:12 11 care concern exists or not.

12

10:51:14 12

13

10:51:20 13 of cases by Dr. Roy provided to you were sent out to

14

10:51:23 14 outside review by the medical staff officers and the

15

10:51:26 15 director of quality care -- and by the way, is this

16

10:51:32 16 -- is this -- that committee one of those committees

17

10:51:36 17 -- investigative committees you talked about, you and

18

10:51:37 18 the medical staff officers, performing here?

19

10:51:40 19

20

10:51:48 20 committee was formed.

21

10:51:49 21

22

10:51:52 22 officers informally sent out Dr. Jadwin's cases for

23

10:51:55 23 outside review, the list of cases provided by Dr. Roy

24

10:51:58 24 in 2006, you recall that the results came back that

25

10:52:04 25 Dr. Jadwin's patient care issue was not incompetence;

Q.

A.

Q.

Did anybody -- after now -- after this list

I don't recall that a formal investigative

Okay.

So when you and the medical staff

HarrisI2

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

Document 277-3

Filed 12/01/2008

Page 80 of 191 410

1

10:52:08

1 that there was no incompetency about Dr. Jadwin's

2

10:52:11

2 reports.

3

10:52:12

3

A.

That is as I recall, yes.

4

10:52:14

4

Q.

Okay.

5

10:52:17

5 anybody at all?

6

10:52:18

6

7

10:52:22

7 a prior deposition.

8

10:52:24

8 here.

9

10:52:28

9 was no need to.

A.

Correct?

So did you relate those findings to

I don't -- you've asked me this question in You've asked me this question

I don't recall.

I would have felt that there

There was no quality of care concern

10

10:52:32 10 raised.

11

10:52:32 11

12

10:52:35 12 no need to explain the results to anybody.

13

10:52:37 13

A.

Exactly.

14

10:52:41 14

Q.

But you knew Dr. Jadwin was concerned?

15

10:52:48 15

16

10:52:48 16 time.

17

10:52:48 17 many times are you going to go over this?

18

10:52:48 18

19

10:52:48 19 BY MR. LEE:

20

10:52:49 20

21

10:52:52 21 David Culberson regarding Dr. Jadwin?

22

10:52:55 22

23

10:52:59 23 conversations with Mr. Culberson regarding Dr.

24

10:53:03 24 Jadwin.

25

10:53:03 25

Q.

So if no concern was raised, then there was

MR. WASSER:

Counsel, you covered this last

You covered that already this morning.

MR. LEE:

Q.

A.

Q.

How

I'll withdraw the question.

Do you recall having conversations with

I'm positive that I would have had numerous

And what would those conversations have

HarrisI2

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

Document 277-3

Filed 12/01/2008

Page 81 of 191 411

1

10:53:06

1 been?

2

10:53:06

2

3

10:53:08

3 recollection of them, but I'm sure that I had them.

4

10:53:11

4

5

10:53:14

5 recall telling Dr. Culberson about Dr. Jadwin's

6

10:53:18

6 competence or incompetency as a pathologist?

7

10:53:21

7

8

10:53:25

8 have to specify in what time period you're talking

9

10:53:28

9 about, but certainly prior to the date that initiated

A.

Q.

A.

At this moment in time I don't have

And do you recall -- well, what do you

I don't recall -- and, again, I think you

10

10:53:33 10 his leave of absence, I don't believe that I would

11

10:53:37 11 have made any comment in a negative way regarding his

12

10:53:41 12 competency.

13

10:53:42 13

14

10:53:45 14 that there was an issue of his competency?

15

10:53:49 15

16

10:53:51 16 that his competency was an issue in this case.

17

10:53:53 17

18

10:53:57 18

19

10:53:58 19 either, but keep going, Counsel.

20

10:54:00 20 before.

21

10:54:00 21

MR. LEE:

22

10:54:00 22

MR. WASSER:

23

10:54:02 23 of time.

24

10:54:02 24

25

25

Q.

A.

Q.

Okay.

Because you had no evidence to show

That's correct.

Well, I wasn't even aware

Well, it certainly wasn't from our view. MR. WASSER:

It's not from the defense We covered that

Okay. That's why this is all a waste

But keep going.

HarrisI2

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

Document 277-3

472 Page 82 of 191

Filed 12/01/2008

STATE OF CALIFORNIA ss. COUNTY OF KERN

I, Erika Addis, a Certified Shorthand Reporter in the State of California, Certificate No.

holding

11621, do hereby certify that

IRWIN EVERETT HARRIS,

M.D.,

foregoing deposition,

was by me duly resworn;

depo~ition

the witness named in the

was taken Wednesday, August 27,

that said

2008,

at the

time and place set forth on the first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action, nor in any way interested in the result or outcome thereof. Dated this 10th day of September,

2008,

Bakersfield, California.

at

» /J~~~_ Erik~ ~ . .£.fl621

WOOD & RANDALL (800) 322-4595

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

Document 277-3

Filed 12/01/2008

Page 83 of 191

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

EXHIBIT 26

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

31

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

Document 277-3

Filed 12/01/2008

Page 84 of 191

Kern Medical Center FNA Consulting Project

David Lieu, M.D., M.B.A. Cytopathologist Assistant Clinical Professor of Pathology UCLA May 3, 2004

DFJ00251

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

Document 277-3

Filed 12/01/2008

Page 85 of 191

Table of Contents Overview of the Problem External Perspectives Perceptions of the Radiology Department Perceptions of the Pathology Department Perceptions of the Clinicians Illustration of Differences in Perception: Radiology and Pathology Overview of the Solution Recommendation 1 – Existence of an FNA Service Recommendation 2 – Communication in Requesting an FNA Recommendation 3 – FNA Reporting Proportion of Unsatisfactory/Limited FNAs Causes of the High Non-Diagnostic Rate From Statistical Data Recommendation 4 – FNA Data Collection Assistance at FNA Procedures Recommendation 5 – Timing of Assistance at FNA Procedures Radiologist Aspiration Recommendation 6 – Aspiration Technique Sampling of the Mass Using CT Guidance Recommendation 7 – Sampling Caliber of Needle Recommendation 8 – Caliber of Needle for Deep and Superficial FNA Type of Biopsy Needle Recommendation 9 – Type of Biopsy Needle: A Cooperative Study Preparation of Smears for Immediate Cytologic Evaluation Recommendation 10 – Expelling Tissue from Needle onto Slide Recommendation 11 – Types of Slides Recommendation 12 – Determination of Adequacy Number of Passes if Immediate Cytologic Evaluation is not Adequate Recommendation 13 – Number of Passes Core Biopsy Recommendation 14 – Core Biopsy by Organ Recommendation 15 – Core Biopsy: When is it Optional? Laboratory Preparation of Specimen Recommendation 16 – Cell Button and Cytospin Review of Previous Unsatisfactory/Limited FNA Cases Lack of Confidence in Pathology FNA Diagnoses and Radiology Aspiration Skills Recommendation 17 – New Review System for Imaging Guided FNAs Criticism of FNA Quality Recommendation 18 – New System for Superficial FNAs Concentration of Own Goals Recommendation 19 – Reporting and Follow Up Conclusion

1 1 2 2 3 3 3 4 4 5 6 7 7 7 8 8 8 9 9 9 10 10 10 11 11 11 11 12 12 12 12 13 13 13 13 15 15 15 16 16 17 17

DFJ00252

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

Document 277-3

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Overview of the Problem Since 2001 the number of fine-needle aspirations (FNAs) has decreased at Kern Medical Center (KMC) in Bakersfield, CA. The fraction that is non-diagnostic or less than diagnostic (unsatisfactory or limited) appears to have increased. As a result, the clinicians at KMC have lost confidence in the ability of the departments involved, radiology and pathology, in arriving at a correct FNA diagnosis in their patients with a mass. Most of the FNAs are imaging guided. They are performed by radiology and interpreted by pathology. Radiology and pathology in turn blame each other for the problem. The problems with the FNA service appear to coincide with the arrival of a new chief of pathology, Dr. David Jadwin, in March 2001. The interventional radiologists have not changed. Over the past 3 years, 4 other pathologists and 1 cytotechnologist have left KMC for various reasons. To determine the cause of the problem, the administration at KMC has asked a cytopathologist with expertise in FNA and affiliated with UCLA for consultation. The methods used in the consultation included a 1-day onsite visit to KMC on February 13, 2004, observation of an imagingguided FNA procedure, interviews with Dr. Jadwin, the interventional radiologists, and the clinicians, review of some slides on-site, review of 200 unsatisfactory or limited FNA smears off-site, test staining of FNA smears brought by the consultant, review of some FNA reports, and delivery of a 1 hour FNA lecture to the medical staff. Administration has asked the consultant to evaluate various technical aspects of FNA collection, preparation, staining, and interpretation to try to find the problem. Each of these aspects will be addressed in the report. However, the consultant has also identified a behavioral problem that may be the underlying cause of the FNA problem. This will also be discussed and recommendations will be made. External Perspectives The problem of excess non-diagnostic FNAs, both superficial and deep, is not unique to KMC. It exists in many small hospitals and in outpatient community practice. At Unilab in California (now Quest Diagnostics), the unsatisfactory (US) rate for superficial FNAs performed by clinicians is 50%. At Contra Costa Regional Medical Center in northern California, the non-diagnostic rate was 60% before arrival of a cytopathologist and an interventional radiologist. After the new specialists came, the US rate dropped to 10% on imaging guided FNAs and 5% on superficial FNAs. Professor Lester Layfield (formally a cytopathologist at UCLA and now at the University of Utah) found that the US rate was 35% for clinicians in west Los Angeles, 15% for clinicians on the UCLA faculty, and 5% for UCLA cytopathologists. There are several reasons for the high US rate in many practice environments. The quality of an FNA is highly correlated with the formal training and experience of the aspirator. Professor Britt Marie Ljung, director of FNA at UCSF, showed that the false-negative rate for detecting breast cancer on FNA was 10 times higher for physicians with no formal FNA training who performed a median of 2 cases per year compared to formally trained physicians who performed a median of 100 cases per year. Nearly all false-negatives were due to sampling error.

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Not all pathologists are skilled in performing and/or interpreting FNAs. Many are not experienced in performing superficial FNAs and do not like looking at FNAs. It is much more difficult to interpret the average FNA than the average core or open biopsy. An FNA consists of much less tissue and has few architectural clues. Only about 15% of pathologists in the United States are certified in the subspecialty of cytopathology. Thus, it is possible for a pathologist inexperienced in cytology to call some FNA cases unsatisfactory when they are not or negative when they are actually unsatisfactory. Although the literature is mixed in this area, pathologist assistance of clinicians for superficial FNAs or radiologists for deep FNAs appears to decrease the fraction of non-diagnostic cases. However, such assistance is not cost effective from the viewpoint of the pathologist. The reimbursement from 3rd party payers for immediate cytologic evaluation of an FNA is inadequate compared to the cost of pathologist time. Professor Lester Layfield found that the pathology department loses $40-50 per case for assistance at FNAs. Hence, many pathologists do not want to help at FNAs. However, such assistance is probably cost effective at the hospital level because some surgical procedures can be avoided. Since KMC is a county hospital, cost control at the hospital level is relevant. Pathologist assistance should continue to be provided to clinicians and radiologists performing FNAs. This will save money at the hospital level because some operations can be avoided or the wrong operation will not be performed. However, the pathology department must be adequately staffed to provide such assistance. Perceptions of the Radiology Department There are 2 interventional radiologists at KMC who perform most of the imagingguided FNAs. They state that they have extensive training and/or experience in this procedure. They perceived no problems with FNAs until Dr. Jadwin arrived in 2001. Since then, they believe that an inordinate number of their aspirations have been interpreted as US when they are not really US. They believe that Dr. Jadwin is inexperienced in interpreting FNAs. They no longer have confidence in his pathology reports. They want to continue performing FNAs rather than referring the cases out but only if the pathology reports are reliable. There is a large credibility gap. The radiologists also complain that the FNA reports are difficult to read. The history section is too long and reflects what the clinicians already know. Most cases have no microscopic description. The diagnosis is difficult to find. Perceptions of the Pathology Department Dr. Jadwin states that he is very experienced in cytopathology and FNA. He feels that the apparent paradigm shift is due to poor interpretations of FNAs in the past by the previous pathologists. He believes that many pre-2001 FNAs were called negative when they were in fact US. The old reports contained no adequacy statement. He also states that the radiologists do not care about the quality of the specimens. They do not know the clinical history. They are in an apparent rush to finish the procedure and do something else. They make additional FNA passes when Dr. Jadwin is not ready or stop the procedure before adequate tissue has been

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obtained. They refuse to go to pathology to review slides. They do not listen to his suggestions about FNA technique. In short, he believes that the high US rate is due to poor technique and failure to listen to advice. Dr. Jadwin wants to continue to assist in superficial and deep FNA procedures. Perceptions of the Clinicians The clinicians believe that the FNA problem is a new one. They do not know if the problem lies in technique, interpretation, or the system. They think that adequate clinical history is being provided to the radiology and pathology. In reality, there is no formal system to insure that clinical information is passed along the proper channels. They believe that palpable masses are not a problem because there are very few superficial FNAs. Most of these lesions are surgically excised. Some palpable masses are still aspirated using CT guidance. Illustration of Differences in Perception: Radiology and Pathology There was a recent tumor board in which radiology and pathology participated. A patient had a CT-guided FNA and core biopsy of a liver mass. The pathology department interpreted the tissue as suggestive of hepatocellular carcinoma (HCC). On review at UCLA, it was interpreted as atypical but not diagnostic of hepatocellular carcinoma. Additional biopsies were suggested. Radiology accused pathology of misdiagnosing the biopsy. Pathology charged radiology with missing the lesion. Each department blamed the other. The consultant reviewed some of the slides and photomicrographs during the onsite visit. There was adequate liver tissue on the smears and slides. Some cells showed increased N/C ratio. There were focal areas of endothelial proliferation that crossed sinusoids. These findings are frequently seen in HCC. However, a definitive diagnosis would require increased N/C ratio in many more cells and atypical naked nuclei. A well-differentiated HCC can show modest increased N/C ratio and can be very difficult to diagnose. Neither department could clearly be “blamed” for this case. There are limitations to every procedure and limitations to microscopic interpretation. The correct response would be to learn from the case and proceed to the next step in working up the patient. Yet radiology and pathology chose to blame each other and learn nothing. This incident clearly illustrated that the FNA problem at KMC far exceeds the high US rate. There is lack of communication and complete distrust between radiology and pathology with negative ramifications for the clinicians and administration. The consultant believes this is the core issue. It is not a simple technical issue. Overview of Solution In order to solve the problem, new systems must be put in place to increase the level of communications at the time of FNA request and FNA reporting. Recommendations will be given both to radiology and pathology to try to increase the technical quality of the FNA procedure. A new review system for FNAs will be

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suggested to engender trust in the FNA reports. A goal will be set for the radiologists in their imaging-guided FNAs. A goal will be set for the pathologists for superficial FNAs. A joint project will be proposed for radiology and pathology to work on together so that they will be partners instead of adversaries. Finally, a periodic review system will be suggested so that both departments will be required to report their progress towards their individual and joint goals. Recommendation 1 – Existence of an FNA Service The first question is should KMC even offer an FNA service? An institution of this size should have many more superficial and imaging-guided FNAs. The procedure is almost certainly underutilized for various reasons. The opportunity exists to gain expertise with experience and to reduce the non-diagnostic rate. Both radiology and pathology want to participate in FNA if trust and open communications can be revived. KMC should continue to offer superficial and deep FNA procedures rather than referring them out. Pathology should continue to assist at superficial and deep FNA procedures. Pathology should be adequately staffed to provide such assistance. Assistance is not cost effective at the pathology department level but is cost effective at the hospital level. Recommendation 2 – Communication in Requesting an FNA There is no formal written system of communication for FNA procedures. Representatives from clinical medicine, radiology, and pathology should meet to design a 1-page request form for FNAs. The form should be divided into thirds. The top third is for the requesting clinician to indicate the requested procedure and to provide all relevant clinical details. Essential information would include the size and location of the mass, the clinical impression based on the history and physical examination, and any history of cancer and subsequent treatment. Other relevant history should be provided on a case by case basis. For example, if the patient has a liver mass and hepatocellular carcinoma is a possibility, the results of an AFP and hepatitis markers should be given. If the patient has enlarged lymph nodes, the duration of the nodes, any growth, and the presence or absence of anemia or “B” symptoms should be noted. If there are outside films or slides to be reviewed, their existence should be noted on the form and the clinician should have the patient sign a release to get them. After the form is filled out by a clinician, it should be sent to the department doing the aspiration. The form should be in triplicate (i.e. the original plus 2 carbon copies) so that each participant in the FNA has a copy. The middle third of the form is for the radiologist. He should review the written clinical information and note the radiological findings. At minimum, the size, location, and character of the mass should be noted. Other relevant imaging findings should be noted. For example, if a retroperitoneal mass is to be aspirated and the radiologist also notes an enlarged spleen, that information should be recorded so that the pathologist can obtain RMPI at the time of aspiration to collect cells for flow cytometry to rule out lymphoma. The lower third of the form is for the pathologist. The form should be available to him at the time of the FNA. He should note the relevant clinical and radiological

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findings. He can use the form to take notes during the FNA procedure and note any special studies that are done, such as culture, flow cytometry, etc. The pathologist can attach an additional worksheet for his note if he needs more space. Recommendation 3 – FNA Reporting The FNA reports are difficult to read. Part of this problem is due to outdated software that does not allow different size fonts or bold face type. Part of the problem is also due to a long clinical history on many FNA reports and lack of a microscopic description. The microscopic description and the diagnosis are the parts that are of added value in an FNA report. The solution is 2-part: short run and long run. In the short run, the software cannot be changed. Although a detailed clinical history may help the pathologist formulate a diagnosis, it does make the report more confusing to the clinician and adds little value. In short, the pathologist is writing to himself. Therefore, the FNA report should be limited to 1 page. In complicated cases, which should not exceed 10% of cases, the report can be 2 pages. The report should contain a short microscopic description and an adequacy statement or other indicator of the quality of the specimen. The adequacy of a specimen should be categorized by 1 of 3 descriptors: 1) adequate 2) unsatisfactory or 3) undetermined - pending further work-up. Adequate describes specimens that are diagnostic of malignancy or benign and explain the patient’s findings. Unsatisfactory describes specimens that are acellular, consist mostly of blood, markedly hypocellular, poorly fixed, crushed, very thick, or otherwise impossible to make any reasonable diagnosis. Indeterminate would be reserved for specimens in which some cells possibly from the lesion are present but it is not possible to make a definitive diagnosis. Further work up may be indicated. This would be similar to BIRADS category 0 on a mammogram. Examples of cases that might be indeterminate on FNA are as follows: 1. 2. 3. 4.

Questionable liver masses on CT scan. FNA shows atypical hepatocytes. Are these regenerative nodules or well-differentiated HCC? Was a malignant nodule missed? Lung mass on CT scan. FNA shows caseous necrosis only. Is this a necrotic tumor or infection? Density in lung on CT scan. Lesion is very fibrous and FNA shows scant fibrous tissue and chronic inflammatory cells. Is this just a scar or a carcinoma with desmoplasia? Livers masses on CT scan. FNA shows many PMNs. Are these abscesses from ascending cholangitis or is there distal tumor causing biliary obstruction and abscess formation proximally?

The indeterminate category defers the question of whether the lesion was adequately sampled until the patient has more work up. It also does not count as an unsatisfactory FNA until more information is obtained. In some cases, the lesion may have been missed. The size and location of the lesion will have a great influence on the ease of sampling. If large, easily accessible masses are consistently missed, then there might be a problem with aspiration technique. If most masses that are missed are small

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and located in difficult-to-aspirate areas, then no such problem exists (see recommendation 4 regarding FNA data collection). In other cases, the nature of the lesion can cause an indeterminate FNA. A fibrous mass usually yields few cells no matter how skilled the aspirator. A biopsy, either via core needle or open, may needed to find the cause. Tumor or coccidiomycoses can cause caseous necrosis in the lung. Cultures and further biopsies may be indicated. Cases in the undetermined category can be subclassified later as to cause – sampling error or nature of the lesion. A recommendation will follow on how to minimize pathology interpretive error on these cases (see recommendation 17). In the long run, the software can be changed. With the new software, the report can be any length. If the pathologist believes a detailed clinical history is required, he can dictate one. However, a microscopic description and adequacy statement should still be done. The diagnosis should be easy to find and highlighted either in a consistent location, large font, or bold face. The radiologists and clinicians should be able to skip the long report and find the microscopic description, statement of adequacy, and diagnosis quickly. Proportion of Unsatisfactory/Limited FNAs The initial problem that grew into the present FNA problem was the increased proportion of unsatisfactory/limited FNA reports after Dr. Jadwin arrived in 2001. The radiologists and clinicians perceived no problems with the previous pathologists. To determine if the fraction of non-diagnostic FNAs had really increased, a statistical analysis was done on the FNA data provided by pathology. It is summarized below. Year

FNAs

%Unsatisfactory/Limited

1996

87

39%

1997

81

16%

1998

53

32%

1999

66

9%

2000

62

29%

2001

58

55%

2002

54

39%

2003*

21

38%

* 6 months of data

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From 1996-2000, there were 349 FNAs of which 25% were unsatisfactory or limited. From 2001-2003, there were 133 FNAs of which 46% were not diagnostic. The null hypothesis that the fraction of non-diagnostic FNAs had not increased was tested using a 1-tail z-statistic using a rejection rule of α = 0.05 (z = 1.96). The result was a z-statistic of 4.28. Therefore, the null hypothesis was rejected and the alternative hypothesis that the fraction of non-diagnostic FNAs had increased was accepted. The fraction of non-diagnostic FNAs had increased over the past few years. Causes of the High Non-Diagnostic Rate From Statistical Data The pathology department collected extensive data on past FNAs. This data included the adequacy of the aspiration, the anatomic site, and the pathologist interpreting the smears. This data was analyzed to determine what factors affected the adequacy of the specimen. A logistic regression model was devised using the statistical program EViews. The dependent variable was the adequacy of the specimen. The independent variables were the interpreting pathologist and the anatomic site. Since this data was qualitative, dummy variables were used. The model showed that the anatomic site was the most important factor in determining the adequacy of a specimen. It was statistically significant at an α = 0.05 level at most sites. In contrast, none of the pathologists individually had a statistically significant effect on the outcome. However, Dr. Jadwin did have a slightly negative effect on adequacy compared to the other pathologists but it was not statistically significant. A Wald test was performed to test the hypothesis that the pathologists jointly had no effect on outcome. The test failed at the α = 0.05 level, which meant that jointly the pathologists had an effect on outcome but not individually. The most important factor in determining adequacy was the anatomic site. Liver and abdomen were the sites most likely to be successfully aspirated. This model suffers from the flaw of omitted variables. Two important variables were missing from the data available from the pathology department: the name of the physician performing the FNA and the size of the mass. As mentioned previously in this report, the experience of the aspirator is critical in determining the adequacy of an FNA. Most false-negatives are due to sampling error. Also, the size of the mass is important. Large masses are much easier to aspirate than small ones. Dr. Anwar Padhani found that the diagnostic accuracy for masses < 1.0 cm. in the lung was 50% compared to 80% for masses > 3.0 cm. Recommendation 4 – FNA Data Collection In addition to the data currently collected, the pathology department should also record the name of the aspirator and the size of the lesion (either the largest dimension or all 3 dimensions). This data may be useful in future analyses of FNA adequacy. Assistance at FNA Procedures

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Radiology currently notifies pathology of a scheduled FNA during the morning of the aspiration. It then calls again about 5 minutes before a pathologist is actually needed. The pathology department sends a technician to radiology first. After she has labeled the slides or even made some of the smears, she calls the pathologist. The pathologist usually arrives within 1-2 minutes. He makes at determination of adequacy after examining one or more slides stained by rapid H&E. There is some disagreement about when the actual aspirations should be done – when the technician is ready or when the pathologist is present? Dr. Jadwin has complained about the radiologists performing aspirations when he is not ready or even completing the procedure and leaving the CT scan room before he arrives. On the other hand, the arrival of the pathologist at the last minute could be perceived as an elitist approach. Therefore, the following procedure is recommended to put an end to the bickering of who should do what and when. Recommendation 5 – Timing of Assistance at FNA Procedures Radiology should notify pathology of an FNA procedure requiring pathologist assistance no later than the morning of the procedure. Twenty-four hours notice should be given if possible. Rare emergency FNAs would be an exception. Approximately 510 minutes before the first pass will be done, radiology should call pathology again. At that time both the pathologist and technician will go to radiology. The technician will label slides, set up the stains, focus the microscope, and check the paperwork. The pathologist will review the clinical history and scans with the radiologist. They should discuss the differential diagnosis and the approach to the aspiration. Should the edge or center of the lesion be aspirated? Will a core biopsy be needed? Should cultures be done? If necessary, the clinician should be contacted to get additional information. After the history and scans have been reviewed and the slides, microscope, and stains are ready, the radiologist will perform the first pass when the pathologist states that he is ready. If additional passes are needed, the radiologist will perform each subsequent aspiration when the pathologist states that he is ready. Radiologist Aspiration The consultant observed one of the radiologists performing a CT-guided FNA of a non-palpable neck mass. He appeared to be skilled in performing the procedure. He was also receptive to suggestions that might improve the quality of tissue obtained. However, Dr. Jadwin and radiologists do not communicate at this level. This suggests that a breakdown in communication is the fundamental problem. This bridge was burned down long ago. Therefore, the following recommendations will be made to try to improve the technical quality of the aspirations. Recommendation 6 – Aspiration Technique The first pass on most masses should be performed using the French (or Zajdela) technique. This is essentially FNA without aspiration. After the needle is placed into the mass and the stylet is removed, the needle should be moved back and

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forth 10-15 times in the mass while no syringe is attached (i.e. no suction). The needle should then withdrawn from the patient and handed to the pathologist. This technique obtains tissue by the scraping of the mass by the beveled needle and capillary action. Less tissue is obtained than FNA with suction but there is much less blood. In many cases, FNA without suction can yield better tissue than standard technique with suction. Also, the radiologist can often tell if he is actually in the lesion by the resistance of the needle in the mass during the FNA. If the pathologist states that the tissue appears good with this technique, additional passes using the French technique can be done. After completing 1 or more passes by the French technique, the radiologist can use standard technique if more tissue is necessary. However, only slight suction (1-2 ml.) should be used. High suction only leads to a lot of blood. If no blood appears in the hub of the needle during the FNA, make 10-15 back and forth motions of the needle in the mass. Do not keep moving the needle until blood appears in the hub. If blood starts to appear in the hub during the FNA, make no more than 10 back and forth motions in the mass. If blood appears in the hub immediately upon insertion into the mass, make 5 back and forth motions in the mass. If suction is used, it must be released for 2-3 seconds before the needle is withdrawn from the patient. This allows pressure in the syringe to equalize to the atmosphere. If the needle is pulled out too quickly, the aspirate will be sucked into the syringe and the non-diagnostic rate will increase to 60%. Sampling of the Mass Using CT Guidance During the observed FNA, the radiologist placed several aspiration needles into the mass using CT-guidance before any aspirations were done. The needles stayed in place and were removed one by one as each was used do an FNA. This is not a technique that the consultant has seen done at UCLA or anywhere else. It appears to save time because several FNA needles can be placed before the pathologist arrives. However, it could result in increased bleeding since the needles are in the mass for a long time. This could compromise the quality of the specimen. Usually the interventional radiologist places a needle at edge of or in a mass and confirms its location by CT scan. He then proceeds with aspiration. The problem with this technique is that it takes a lot of time because a scan must be done with each needle pass. Recommendation 7 – Sampling The coaxial technique may be a good compromise. The radiologist places a larger guide needle (18-gauge) at or near the edge of a mass and confirms its location by CT scan. He then advances a smaller aspiration needle (22-gauge or 20-gauge) through the larger needle deeper into the mass and performs the FNA. Several FNAs can be done this way without the need for re-scanning. This latter technique was used successfully by an interventional radiologist who worked closely with the consultant for several years in the Bay Area. The diagnostic rate was over 90%. If several FNAs with the guide needle in one position do not yield good specimens, the guide needle should be

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repositioned using CT guidance and the FNA repeated. The coaxial technique should be tried. Caliber of Needle Unlike core biopsy, a large caliber FNA needle is not desirable. It results in a very bloody FNA and clotting in the needle itself. The former obscures cells and compromises fixation. The latter can cause diagnostic cells to stay in the needle or syringe and never make it to the slide. The general rule for FNA is to use the smallest possible needle that gets tissue without a lot of blood. For FNA of deep-seated lesions, too thin of a needle will not work because it will bend. A reasonable compromise between bleeding, amount of tissue, and bending of the needle on deep FNAs is as follows. Recommendation 8 – Caliber of Needle for Deep and Superficial FNAs A 22-gauge needle should be used for most CT-guided FNAs. If the lesion is too fibrous to be aspirated with a 22-gauge needle, a 20-gauge needle should be tried. The radiologist will be able to feel if a lesion is fibrous if the first 1-2 passes are done using the French technique. If a thyroid is aspirated using sonogram guidance, a 27-gauge 1¼” needle should be used. The French technique is very useful in this organ because it causes very little bleeding. This is especially significant because excess bleeding can make colloid difficult to identify. Occasionally, a 25-gauge needle may be needed to obtain tissue. This can occur in cases of Hashimoto’s disease, subacute granulomatous thyroiditis, and when draining cysts with thick contents. Almost all other FNAs of superficial masses can be done using a 25-gauge needle. Occasionally, a 23-gauge needle will be needed. In general, start with the smaller needles rather than the larger ones. Type of Biopsy Needle There are many types of FNA needles on the market. The one a radiologist might choose relates to personal preference and availability. Radiologists at KMC currently use the Turner biopsy needle. This needle appears to have a short bevel, which could decrease the area available to scrape cells in a mass. Since it is not clear which needle is best, the radiologists and pathologists at KMC should participate in a study to determine what works best at KMC. By cooperating in a study, they will be working together toward a common goal – to determine what needle works best – instead of blaming each other for problems. Recommendation 9 - Type of Biopsy Needle: A Cooperative Study Pathology and radiology should jointly cooperate in a study of FNA needles. The radiologists should order 4 types of biopsy needles for this study: Turner, Chiba, spinal, and notched aspiration biopsy. The latter is the needle used by Dr.

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Michael Price, the interventional radiologist who worked closely with the consultant for many years. It can be ordered from Boston Scientific Medi Tech at 800-2253238. The order number is 40-503-M001405030. It is 13 cm. long and is available in 22-gauge and 20-gauge. The study should be done as follows. All 4 types of these needles should be ordered in 22-gauge and 20-gauge. Each of these needles of the same gauge should be used during an imaging-guided FNA if that many passes are being done. A different type of needle should be used for each pass. The radiologist should let the pathologist know what needle is being used for each pass. The pathologist should record the needle type and technique (French or standard) on his worksheet. The pass number should be written on the slide so that the needle associated with it can be identified later. The order of the needles being used should be randomized on different patients. After collecting data from several dozen FNAs, the pathologist and radiologist should have information on the type of needle that seems to work best. The best needle can then be adopted for future cases. Preparation of Smears for Immediate Cytological Evaluation Dr. Jadwin used standard technique for expelling the aspirate from the slide, making smears, fixing them, and preparing a cell button. He then reviewed a stained smear and told the radiologist whether or not it was adequate. The previous recommendations regarding French technique, caliber of needle, and number of back and forth motions of the needle can help decrease bleeding. However, some bleeding is inevitable no matter how skilled the aspirator. If there is significant blood in the needle, it can clot and make it difficult to expel the aspirate onto a slide. Recommendation 10 – Expelling Tissue from Needle onto Slide Instead of using air in a syringe to expel the aspirate, the pathologist should use the stylet of the needle (which the radiologist has removed and is no longer using) to gently push the aspirate out of the needle onto the slide in a controlled manner. This technique will avoid the problem of a clot being forcibly expelled from the needle due to high air pressure from the syringe followed by all the unclotted aspirated tissue splashing onto one slide or all over the table. The consultant learned this technique from an interventional radiologist, not another cytopathologist, and always uses it for imaging-guided FNAs using a long needle. Recommendation 11 – Type of Slides FNA material should be placed on positively charged slides instead of regular slides. It might help the tissue stick better and minimize the loss of tissue during processing. These special slides are used by the consultant in his FNA clinic and by cytopathologists at UCLA. Recommendation 12 – Determination of Adequacy

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Since a double headed microscope is available in the CT room, both the pathologist and radiologist should look at the immediately stained smear together. This will give the radiologist a better idea of what constitutes an adequate specimen and engender a spirit of teamwork. It will also give positive feedback to the radiologist on cases in which he has obtained an adequate specimen. As previously recommended, just prior to the FNA the pathologist and radiologist should look at the scans together. By looking at each other’s work, pathology and radiology will have a better appreciation of the challenges that each faces. It will open channels of communication. Number of Passes if Immediate Cytologic Evaluation is not Adequate If immediate cytologic evaluation shows that an aspirate is not adequate, there are no hard guidelines on the number of passes that should be attempted before giving up. Studies have shown that the marginal yield markedly decreases after 4-5 passes. Patient safety is also an issue. It is more risky to do more passes in the lung than in the retroperitoneum. Recommendation 13 - Number of Passes If diagnostic tissue is not obtained after 1-2 passes on an imaging-guided FNA, up to 4-6 passes total should be attempted. Fewer passes might be done if patient safety is an issue or if complications set in. More passes should be attempted if the patient tolerates the procedure well and both pathologist and radiologist agree that it is worthwhile to continue. Core Biopsy There is a question of when a core biopsy should be done with an FNA. The answer depends on the clinical situation and site. A core biopsy is easier to interpret than an FNA. It also gives architecture, which is usually absent or more difficult to detect on an FNA. However, a core biopsy causes more bleeding and can have more complications. It also increases costs. Recommendation 14 – Core Biopsy by Organ Core needle biopsy should not be performed in the thyroid. It causes excess bleeding. FNA with a 27-gauge 1¼” or occasionally with a 25-gauge 1” or 1½” needle will usually suffice. In skilled hands, FNA of the thyroid will be satisfactory about 8590% of the time. Solid non-palpable breast masses should undergo core needle biopsy rather than be aspirated. The reason is that significant non-palpable lesions detected by imaging are often atypical hyperplasia, low-grade ductal carcinoma, lobular carcinoma, or tubular carcinoma. These lesions are diagnosed by evaluating cytology, architecture, and extent. FNA only gives cytology. That is, FNA might give a false-negative diagnosis. Non-palpable breast masses, architectural distortions, or asymmetries should have 6-8 needle cores. Indeterminate or suspicious calcifications should have 8-10

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needle cores. The tissue should be placed in formalin. Pathologist assistance at the core biopsies is usually not needed. The tissue obtained should be examined at several levels. An alternative to imaging-guided core biopsy of the breast is excisional biopsy following needle localization. A core needle biopsy is very useful when a primary hepatocellular carcinoma (HCC) is suspected. It is difficult or impossible to diagnose well-differentiated HCC by cytology alone. Architecture is very helpful. When immediate cytologic evaluation of a liver FNA raises the possibility of a primary hepatic neoplasm, further generous aspirates should be submitted for cell button and several core needle biopsies should be done. Recommendation 15 – Core Biopsy: When is it Optional? In other sites, the pathologist and radiologist should decide whether a core needle biopsy should be done along with FNA. After examining one or more smears, the pathologist should let the radiologist know if a core biopsy is needed. It might be needed if the FNA is not adequate (e.g. the mass is fibrous), the FNA is adequate but cellularity is low, architecture is required, IHC stains may be needed, lymphoma is suspected, etc. If the pathologist requests a core needle biopsy, the radiologist should obtain one or more cores if he believes it is safe to do so. If a core needle biopsy will be done, it should be done after all the FNAs have been completed since the former causes more bleeding. Laboratory Preparation of Specimen The Pap staining-technique at KMC was tested by the consultant. Three unstained alcohol-fixed slides from the consultant’s FNA practice were brought to KMC pathology for staining. The Pap stain was adequate. No cells were lost. The quality was similar to that in the consultant’s laboratory. Review of some cytospin and cell button preparations at KMC also showed that they were adequate. Cell button preparations are routinely done on imagingguided FNAs. However, cytospins were also done on a palpable thyroid mass from the previous day. A recent study by Professor Katherine Liu at Duke University showed that routine cell buttons had a marginal cost $1906 per additional diagnosis not seen on the smears. Routine cytospins had a marginal cost of $7736 per additional diagnosis not seen on the smears. A cell button is cost effective only if an immediate stain of the FNA is not diagnostic. Routine cell buttons and cytospins are not cost effective. Both alcohol-fixed and air-dried smears should be prepared on all FNAs. Usually more of the former should be made. However, extra air-dried smears should be made on FNAs of the thyroid (to help identify colloid) and in possible cases of lymphoma. Recommendation 16 – Cell Button and Cytospin Cell buttons and cytospins should not be routinely done on FNAs. If a serous fluid is aspirated, a cytospin should be done. If immediate cytologic evaluation is not diagnostic, a cell button should be made (along with a core needle biopsy in certain locations – see previous recommendation). In imaging-guided FNA (as opposed to superficial FNA), the needle and syringe should be rinsed to collect a cell button. It can be saved and processed if the smears are not diagnostic.

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Review of Previous Unsatisfactory/Limited FNA Cases The consultant on a blind basis reviewed approximately 200 slides from previous cases that were deemed unsatisfactory or limited (less than diagnostic). Minimal clinical information was provided. Overall, the consultant agreed that nearly all the cases were either non-diagnostic or limited in diagnostic value. The review diagnoses closely mirrored the original diagnoses in most cases. The consultant found no obvious problems with the pathologic interpretation of FNAs at KMC. Many cases had either excess blood or scant cellularity. Some had airdrying artifact that made interpretation difficult. Some cases had marked necrosis. Some were fibrous or inflamed. A few showed non-neoplastic tissue. In some cases, there cells in the middle of thick blood clot that made interpretation difficult or impossible. A positive diagnosis of malignancy on FNA has 4 requirements: 1) adequate cellularity 2) sufficient cytological atypia in well preserved cells 3) monomorphic cell pattern 4) cellular dyshesion. If fewer criteria are employed to diagnose malignancy, a false-positive diagnosis can result. Not every FNA of a malignant tumor will have all 4 criteria on the smears. For example, it may be impossible to obtain sufficient cellularity in a desmoplastic tumor. A low-grade cancer with minimally abnormal cells or cohesive cell pattern will not result in a positive cytologic diagnosis. There are limitations of FNA. For example, cases F00-32 and N03-91 had a few very suspicious cells. However, there was insufficient cellularity to fulfill criterion 1. Case N02-230 had sufficient cellularity and an abnormal pattern, but all the cells were necrotic and did not fulfill criterion 2. Case N02-240 had too much air-drying artifact to make any definite conclusions, which violated criterion 2. If a case is interpreted correctly but is not diagnostic, the default conclusion should not be the aspiration was done poorly or unskillfully. In many cases, the nature of the lesion is the cause of the unsatisfactory FNA. For example, many of the cases reviewed showed only caseous necrosis. This could be caused TB, coccidiomycoses, necrotic tumor, etc. The needle indeed sampled the mass. However, the exact cause of the lesion could not be determined by the smears. If it is recognized at the time of immediate cytologic evaluation, cultures should be taken and additional aspirates should be made to look for possible viable tumor cells. There should be cooperation between radiology and pathology to find the cause, not a rush to blame each other. If a mass is hypocellular at immediate cytologic evaluation due to apparent fibrosis, larger needles should be used. Core needle biopsies should be taken. No one is to blame if adequate cells cannot be obtained. It is caused by the nature of the lesion. It may not be possible to determine if an FNA is adequate even after all slides are reviewed. Clearly if the FNA reveals a malignancy or a specific benign cytologic diagnosis that explains the clinical and radiological findings, the FNA is adequate. What if only fibrosis or non-neoplastic tissue consistent with origin from the organ sampled is seen? The patient either has fibrosis only, does not really have a mass, or has a malignancy in which malignant cells were not obtained (e.g. geographic miss, desmoplasia, etc.) Cytology by itself will not answer this question. The correct procedure is to go back to the clinical and radiological findings to decide whether more

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invasive procedures should be performed (e.g. laparoscopy, open biopsy, etc.). The answer to whether an FNA with these findings was really adequate may have to wait until after an open biopsy (for a suspicious mass) or a period of clinical observation (for a nonsuspicious radiological abnormality). In other words, one may need the final answer before retrospectively deciding if an FNA was really adequate. The question of adequacy in FNA is much more difficult to answer than in gynecological Pap smears using Bethesda 2001.

Lack of Confidence in Pathology FNA Diagnoses and Radiology Aspiration Skills The problems with FNA at KMC have led to mutual distrust between radiology and pathology. They have escalated to a breakdown in communications and to mutual fault finding. Each FNA is an opportunity to blame each other if the case is not diagnostic. Pathology does not trust radiology to make good aspirations. Radiology does not trust pathology to make good interpretations. Observation of the radiologists performing the FNA, watching the pathologists making and staining the smears, and reviewing previous FNA smears have only limited value in rebuilding lost confidence. The issue of who did the review, possible bias for one party or the other, and the limitations of retrospective review (e.g. lack of opportunity to review all the clinical and radiological findings, second-guessing after the fact, etc.) will always arise. What is needed is a new prospective system to restore confidence in future FNAs. Recommendation 17 – New Review System for Imaging-Guided FNAs No major discrepancies were discovered in a slide review of previous unsatisfactory/limited FNAs from KMC. However, this is a review of the past. It will not magically engender trust in the interpretation of future FNAs. A new system is needed to reestablish trust. To restore confidence, all imaging-guided FNAs that are deemed to be unsatisfactory or limited (e.g. unsatisfactory or indeterminate) should be automatically referred to UCLA for a second opinion. All relevant clinical and radiological information, including scan reports, should be sent along with the slides. At UCLA, a cytotechnologist screens all FNAs. There are no cytotechnologist screeners at KMC. At least one cytopathologist reviews every FNA at UCLA. The study period should be 1 year. The radiologists will know that if pathology calls a case unsatisfactory or indeterminate (e.g. possible sampling error or poor technique), expert cytopathologists will review the case. This system will prompt pathology to review all cases carefully. It would be embarrassing to pathology if many cases initially called nondiagnostic are called diagnostic by experts. On the other hand, if UCLA agrees that most of the referrals of non-diagnostic cases are indeed non-diagnostic, radiology would be embarrassed because it could indicate poor sampling or aspiration technique. The bottom line is that radiology will be motivated to do careful aspirations. Pathology will be motivated to make careful interpretations. The goal of this new system is to have less than 20% unsatisfactory or indeterminate cases due to geographic misses or sampling error in the first year.

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There should a number of cases in which it was no one’s “fault” that the FNA was not diagnostic. For example, a benign fibrous scar or a desmoplastic carcinoma in the lung could both be interpreted as unsatisfactory or indeterminate on FNA. Only an open biopsy will reveal the true nature of the lesion. No one is to blame for such a nondiagnostic FNA. Criticism of FNA Quality One of the perceived problems may be that pathology is always the critic and never an active participant in FNA. It is easy to criticize aspiration technique if one does not actively perform the aspirations and know of the difficulties. It is similar to being a movie or theater critic but never being a director or actor. Pathology needs to participate more fully in the FNA service than only being a judge. By being a participant as well as a judge, it will have more credibility. Recommendation 18 – New Superficial FNA Service Since Dr. Jadwin is experienced in cytology, he should set up a superficial FNA service at KMC for patients with palpable masses. A pathologist should be available within 30 minutes to perform an FNA on a patient with a palpable mass on the hospital grounds during regular working hours. A 2-hour FNA clinic once a week should also be reserved for pathologist performed FNAs. A nurse or technician should assist the pathologist. The clinic is for scheduled FNAs for patients who were seen off the hospital grounds and are being referred for an FNA. It is also for KMC clinic patients with a palpable mass when an FNA cannot be done be done within 30 minutes due to personnel shortages, lack of space in a clinic, patient time constraints, etc. The pathology department should be adequately staffed to provide such a service since other stat procedures (e.g. frozen sections) also require immediate attention. The new pathologist FNA service for palpable masses should decrease the number of excisional biopsies at KMC. Clearly, an institution the size of KMC should have more superficial FNAs. The clinicians believe that there is no real problem with superficial FNAs. However, the consultant believes that there is a hidden problem because it is underutilized. Excisional biopsy may be overutilized. Palpable masses should not, in general, be aspirated using imaging guidance. The goal of superficial FNA is to attain a non-diagnostic rate of less than 10%. Since KMC is a teaching hospital, Dr. Jadwin can teach or supervise residents in doing FNAs on their own patients. The consultant previously taught many family practice residents to do FNAs. The first few passes should be done by Dr. Jadwin to assure adequate tissue. The resident should then perform several passes. Local anesthesia is recommended. One of the benefits of a pathologist directed and performed superficial FNA service is to increase the credibility of the department if the service is well run. For example, if most of the FNAs are adequate and ultimately shown to be correct, physicians will have confidence in FNAs done at KMC. This will extend to interpretations on imaging-guided FNAs. Concentration on Own Goals

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The new system for review of imaging guided FNAs and the pathologist performed superficial FNA service will give radiology and pathology new goals on which to concentrate instead of blaming each other for non-diagnostic FNAs. Radiology needs to achieve fewer than 20% non-diagnostic cases on imaging-guided FNAs. Expert review of non-diagnostic cases will be provided by UCLA. Pathology will start a new superficial FNA service with a goal of fewer than 10% non-diagnostic cases on palpable masses. Both departments will cooperate in the needle study to determine which type of needle works best at KMC on imaging-guided FNAs. Recommendation 19 – Reporting and Follow Up The ad hoc FNA committee should provide supervision of the implementation of these recommendations. After all interested parties have had a chance to review the report, it should meet to determine which recommendations should be implemented. A time table should be set up. Quarterly meetings for the next year should be scheduled. At these quarterly meetings, progress should be reported. How many superficial and imaging-guided FNAs were done last quarter? What was the non-diagnostic rate on each? What were the non-diagnostic cases called at UCLA? What did the follow up and subclassification on the indeterminate cases show? What is the progress on the needle study? Conclusion The FNA problem at KMC may have started with a different paradigm for interpretation of FNAs. It has escalated to a breakdown of communications between clinical medicine, radiology, and pathology. There is deep mistrust between radiology and pathology. The recommendations in this report deal both with technical issues and behavioral issues. The technical suggestions regarding number of aspirates, type of needle, aspiration technique, smear technique, etc. are aimed in trying to attain marginal improvement in technical quality. More importantly, the recommendations on new systems for FNA are aimed at correcting the miscommunication and distrust. The new FNA request form should foster better communication. The FNA report format should give added information and be more concise. The mandatory review of all non-diagnostic deep FNAs at UCLA will reestablish trust that the smears are being interpreted correctly. However, radiology now has an objective on which to concentrate – less than 20% non-diagnostic cases in the first year. It will report to the ad hoc committee. Similarly, pathology will establish a new superficial FNA service. It has the opportunity to demonstrate the expertise that it claims to have in cytology. It has a goal of less than 10% non-diagnostic cases in the first year. It will also report to the ad hoc committee. Finally, both radiology and pathology will work together to find the best needle for deep FNAs. This is a project for which both departments will be responsible.

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An effective FNA service is the product of dedication and hard work by all physicians involved. It will not happen in a few weeks or a few months. Aspirators get better with experience, even after many years. Pathologists get better with experience, even after many years. At UCSF, physicians with no experience in FNA started with an unsatisfactory rate of 60%. Two years later, after much experience and mutual support, these same physicians had an unsatisfactory rate of 5%. This is not an unreasonable time frame for KMC. If the recommendations are implemented and the physicians involved are truly dedicated to improving the service instead of bickering and passing blame, the FNA service will truly be a service to the physicians and patients of KMC.

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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

EXHIBIT 27

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

32

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1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

JENNIFER JANE ABRAHAM, M.D.

17

Monday, August 18, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

AbrahamJ

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1

14:09:04

1 the conclusion that he couldn't find any

2

14:09:05

2 discrepancies in Dr. Jadwin's pathology reports?

3

14:09:09

3

4

14:09:09

4 any -- yeah.

5

14:09:12

5 said anything about discrepancies in his pathology.

6

14:09:14

6 I think that's true.

7

14:09:15

7

8

14:09:16

8 finding that he was corroborating Dr. Jadwin's

9

14:09:19

9 pathology reports.

A.

Q.

A.

I don't -- no.

I don't think there was

I mean, I don't think in the report

Okay.

So Dr. Lieu -- you recall Dr. Lieu

Correct?

10

14:09:21 10

I'm sure you have this report in your

11

14:09:24 11 file --

12

14:09:24 12

Q.

We do.

13

14:09:25 13

A.

-- and so I would refer to that because the

14

14:09:29 14 black and white is better than my memory.

15

14:09:30 15

Q.

Sure.

16

14:09:31 16

A.

My memory, as I recall the evaluation by

17

14:09:34 17 Dr. Lieu, had more to do with the process of

18

14:09:37 18 obtaining the pathology reports.

19

14:09:41 19 I -- I -- my remembrance is that we still were not

20

14:09:47 20 satisfied with whether or not the -- the pathology

21

14:09:50 21 readings of the FNA was -- was -- was adequate.

22

14:09:58 22 is my remembrance.

23

14:10:00 23

Q.

Sure.

24

14:10:00 24

A.

And -- and so then I believe what happened

25

14:10:02 25 was that's when we said, let's just send these

Sure.

AbrahamJ

And when we read it

That

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14:18:00

1 was the reason for the request for -- for overreads;

2

14:18:04

2 so that -- so that we could improve our ability to

3

14:18:10

3 trust the readings of our pathologist.

4

14:18:14

4

Q.

Okay.

5

14:18:15

5

A.

So I don't think at the time we had come to

6

14:18:19

6 the conclusion that the pathologist -- that the

7

14:18:22

7 pathology readings were incorrect.

8

14:18:24

8 that we didn't know.

9

14:18:27

9

Q.

Okay.

10

14:18:27 10

A.

And I don't recall that having this report

11

14:18:36 11 did -- did an adequate -- did adequately improve that

12

14:18:42 12 trust.

13

The problem was

13 BY MR. LEE:

14

14:18:43 14

Q.

15

14:18:46 15 issued this FNA report, there still remained doubts

16

14:18:49 16 about Dr. Jadwin's competence as a pathologist?

17

14:18:52 17

18

14:18:53 18

19

14:18:55 19 know, you mentioned before peer review, but I'm

20

14:18:58 20 recalling now it wasn't for peer review.

21

14:19:01 21 improve the trust --

22

14:19:02 22

Q.

Okay.

23

14:19:02 23

A.

-- so that the physicians could then say,

24

14:19:04 24 okay, look.

25

14:19:08 25 was a new pathologist, he'd gotten rid of the ones we

A.

Okay.

So, in other words, after Dr. Lieu

Yes. Like I said, the purpose was not -- you

Our pathologist is correct.

AbrahamJ

It was to

I mean, it

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2 or second from the bottom.

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3 Aspiration.

4

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Well, take a look at that middle paragraph

4

A.

Um-hmm.

It's called Radiologist

5

14:21:55

5

Q.

Do you see that?

6

14:21:56

6

A.

Yes.

7

14:21:56

7

Q.

And here Dr. Lieu is explaining his

8

14:21:59

8 observation of the radiologists in this report.

9

14:22:07

9

A.

Breakdown in communication is a fundamental

10

14:22:11 10 problem.

11

14:22:12 11

Q.

Um-hmm.

12

14:22:13 12

A.

Yeah.

13

14:22:15 13 problem.

14

14

Q.

Right.

15

14:22:16 15

A.

This bridge was burned down long ago.

16

14:22:20 16

Q.

Right.

17

14:22:21 17

18

14:22:23 18 one radiologist performing one C.T. guided FNA on a

19

14:22:27 19 nonpalpable neck mass.

20

14:22:30 20

21

14:22:30 21

A.

Um-hmm.

22

14:22:33 22

Q.

So that was -- that was the extent of

That seemed to be the fundamental

Okay.

Right. Well, you see here Dr. Lieu observed

Do you see that? Um-hmm.

23

23 Dr. Lieu's observation of the radiologists.

24

24

A.

Right.

25

14:22:33 25

Q.

He looked at 200 samples by Dr. Jadwin.

AbrahamJ

He

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14:26:56

1 have trust in him.

2

14:26:59

2 in him?

3

14:27:01

3 of the next step was to do something to improve the

4

14:27:04

4 trust.

5

14:27:05

5

6

14:27:06

6 report then?

7

14:27:08

7

A.

To review the FNA procedure.

8

14:27:11

8

Q.

Okay.

9

14:27:11

9

A.

But we couldn't get the pathologists and the

Q.

So why didn't we still have trust

And I don't know.

Okay.

And that was the purpose

But what was the purpose of the

10

14:27:13 10 radiologists to play in the sandbox together.

11

14:27:15 11

12

14:27:18 12 reports, wasn't it to find out whether, in fact,

13

14:27:21 13 Dr. Jadwin was competent or not in interpreting FNAs?

14

14:27:25 14

15

14:27:26 15 initial reasons, yeah.

16

14:27:27 16

17

14:27:29 17 didn't disagree with Dr. Jadwin's diagnoses, that

18

14:27:32 18 didn't improve confidence?

19

14:27:36 19

20

14:27:37 20 still didn't go all the way for some reason.

21

14:27:40 21 was part of the reason for -- for -- for getting --

22

14:27:43 22 for continuing to get six -- and we were told we

23

14:27:49 23 would get six months of overreads.

24

14:27:50 24

25

14:27:51 25 shake your trust in the radiologists at all?

Q.

A.

Q.

A.

Q.

So one of the reasons for Dr. Lieu's

That was probably an initial -- one of the

Okay.

And when Dr. Lieu found that he

Unfortunately, it still didn't get -- it

Okay.

So that

Now, did this report from Dr. Lieu

AbrahamJ

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1

2

14:27:58

2 the radiologist had been there since I started, since

3

14:27:59

3 all of us had started.

4

14:28:03

4 thing.

5

14:28:05

5 they'd already earned our trust.

6

14:28:06

6

7

14:28:07

7

8

14:28:09

8 that Dr. Jadwin was sending his FNAs out to UCLA for

9

14:28:13

9 overreads from the time he started there?

Q.

See, we -- we'd been with the radiologist --

And so trust is a funny

You know, you have to sort of earn it, and

I see. Okay.

Well, would it surprise you to know

10

14:28:15 10

A.

Yes.

11

14:28:17 11

Q.

And would it surprise you that he continued

12

14:28:18 12 to do that after this --

13

14:28:19 13

14

14:28:22 14 saw a report.

15

14:28:23 15

16

14:28:24 16 Dr. Jadwin was getting a 100 percent conformity

17

14:28:28 17 with --

18

14:28:28 18

19

14:28:30 19 actually the ones that did go -- that did go out,

20

14:28:33 20 I have heard -- and this is all --

21

14:28:36 21

Q.

Hearsay.

22

14:28:36 22

A.

-- hearsay, but that the reports that were

23

14:28:41 23 dictated were dictated -- the final reports were

24

14:28:46 24 dictated after it came back from UCLA.

25

14:28:49 25

A.

Q.

A.

Q.

Yes.

It would surprise me.

Okay.

It would surprise me 'cause I never

Yes.

Would it also surprise you that

That would surprise me because

I see.

AbrahamJ

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14:28:50

2

Q.

Dr. Jadwin --

3

14:28:50

3

A.

But we still didn't feel that we had the --

4

14:28:55

4 the --

5

14:28:56

5

Q.

Evidence?

6

14:28:58

6

A.

But once again, that's hearsay.

7

14:29:00

7 see -- I don't have any specific evidence myself.

8

14:29:03

8

9

14:29:06

9 Dr. Jadwin was basically retroactively changing

Q.

I did not

So there was a rumor going around that

10

14:29:09 10 his -- his FNA --

11

14:29:09 11

A.

Right.

12

14:29:10 12

Q.

-- reports to match those of UCLA --

13

14:29:12 13

A.

Right.

14

14:29:13 14

Q.

-- to create the appearance that UCLA was

15

14:29:15 15 agreeing with his initial diagnosis?

16

14:29:17 16

A.

And that's all part of trust, isn't it?

17

14:29:19 17

Q.

Do you recall who was saying this?

18

14:29:21 18

A.

No.

19

14:29:22 19

Q.

This is -- this is part of the chatter that

20

14:29:24 20 was going around the hospital?

21

14:29:24 21

A.

Chatter.

22

14:29:26 22

Q.

Chatter?

23

14:29:26 23

A.

Chatter.

24

14:29:27 24

Q.

This is part of the chatter that was going

25

14:29:28 25 around the hospital?

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1

14:31:17

1

Q.

Okay.

2

14:31:18

2

A.

And see how that fits in with all the other

3

14:31:20

3 things I was talking about?

4

14:31:22

4

Q.

Okay.

5

14:31:23

5

A.

The whole purpose of having the overreads

6

14:31:25

6 was to build confidence and trust.

7

14:31:27

7

8

14:31:30

8 trust in Dr. Jadwin's competence as a pathologist?

9

14:31:34

9

A.

I don't have evidence one way or another.

10

14:31:37 10

Q.

Okay.

11

14:31:39 11 I mean, if you were to work with Dr. Jadwin today,

12

14:31:41 12 you wouldn't trust his competence as a pathologist.

13

14:31:44 13 Correct?

14

14:31:44 14

A.

No.

15

14:31:45 15

Q.

No.

16

14:31:45 16

A.

And that's probably not fair of me, I admit,

17

14:31:48 17 but, no.

18

14:31:53 18 or another.

19

14:31:55 19

20

14:32:10 20 competence was in question as a pathologist around

21

14:32:12 21 2004.

22

14:32:15 22 happening.

23

14:32:15 23

A.

Probably.

24

14:32:17 24

Q.

Do you recall whether his competence was in

25

14:32:20 25 question throughout his tenure?

Q.

Q.

Okay.

To this day do you have confidence or

But you don't trust Dr. Jadwin --

Because I don't have the evidence one way

Okay.

Correct?

If -- if Dr. Jadwin -- Dr. Jadwin's

This is when the FNA thing was

AbrahamJ

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Page 113 of 191 148

1

16:09:02

1 of the conference for the benefit of the residents.

2

16:09:04

2

3

16:09:05

3 referenced there?

4

16:09:06

4

5

16:09:08

5 we talked about, disagreeing with USC and how they

6

16:09:12

6 are -- you know, that he's so perfect and they're so

7

16:09:13

7 bad and -- political point probably, to my

8

16:09:19

8 understanding, wasn't -- isn't the best term --

9

16:09:21

9

Q.

Okay.

10

16:09:22 10

A.

-- because it wasn't so much politics as --

11

16:09:31 11 as -- as ego and --

12

16:09:35 12

Q.

Lack of diplomacy?

13

16:09:36 13

A.

Lack of what?

14

16:09:37 14

Q.

Diplomacy.

15

16:09:39 15

A.

Right.

16

16

Q.

Professional respect.

17

16:09:40 17

A.

Lack of diplomacy and professional respect.

18

16:09:43 18

19

16:09:46 19 other than the politics between the departments, but

20

16:09:49 20 even that wasn't so much politics as -- as

21

16:09:53 21 interpersonal problems with interpersonal

22

16:09:56 22 relationships.

23

16:10:04 23

24

16:10:06 24 the second paragraph:

25

16:10:08 25 justification for your actions of the content of your

What was the political point that's

A.

I think it had something to do with -- like

Oh, that's good.

I don't know that any politics was involved

Q.

Well, in the last sentence it says there in Regardless of the

AbrahamJ

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218 Page 114 of 191

Filed 12/01/2008

STATE OF CALIFORNIA ss. COUNTY OF KERN

I,

Susan R. Wood,

a Certified Shorthand

Reporter in the State of California, holding Certificate No.

6829,

do hereby certify that

JENNIFER JANE ABRAHAM, M.D., foregoing deposition,

the witness named in the

was by me duly sworn;

deposition was taken Monday, August 18,

that said

2008,

at the

time and place set forth on the first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action,

nor

in any way interested in the result or outcome thereof. Dated this 2nd day of September,

2008,

at

Bakersfield, California.

susan~R--N-O-.

- 6-8-2-9----

WOOD & RANDALL (800) 322-4595

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

Document 277-3

Filed 12/01/2008

Page 115 of 191

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

EXHIBIT 28

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

33

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

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~ • MEDICAL CENTER .KERN

Affiliated with University o/California Schools 0/ Medicine at Los Angeles, San Diego and Irvine

Dear Cancer Conference Presenter, In order to promote an informative yet time efficient learning environment, please use this fonnat while preparing you presentation. **Please limit the number ofslides you prepare to less than 10 slides** 1) Chief Complaint-Presenting Symptoms 2) History of Present Illness 3) History of Past Medical Illness 4) Family History 5) Psychosocial History 6) Physical Exam: include performance scale (ex: Kamofsky, ECOG, APGAR, other) #1-6= 5 minutes 7) Briefoverview oftesting ordered (i.e. Diagnostic Radiology, etc...) #7= 5 minutes -f-f-f1-7 Should not take up more than 10 minutes ofyour presentation 8) lNM Stage 9) Discuss Treatment Options -f-f-f #8-9 Are essentialfor prospective case presentation, 10 minutes. 10) Discuss possible follow-up after treatment 11) Early Detection: Discuss possible screening for early detection if available for this site -f-f-f #1 0-11 For educational purposes, try to include these quickly in your presentation. A CoS-CaC requires that Oncology Conference be Prospective, which is defined as "presentation at a time when management ofthe patient could be influenced by the {!iscllssion ofmanagement options at anytime during the patient's disease".

Included in your presentation you will need to allow time for Pathology and Diagnostic Radiology and any other specialty involved in the case to present their findings. ** You will be required to meet with hoth the Pathologist and Radiologist to {Iiscuss the case to be presented at least 4 working day!. before the conference. It is also your responsibilitv to notify ALL physicians involved in the case you are presenting. Please let the Cancer Registrar know of any equipment you may need for your presentation. Any equipment other than a computer or LCD must be specified. You must provide a hard copy of your presentation to the Cancer Registrar (or Laura) by no later than the Monday preceding the date you are to present. Also, please arrive at least 15 minutes early in order to download your presentation to the computer prior to the start ofthe conference. This will cut down on delay time that occurs with multiple presenters. This guide is provided to assist us in meeting the educational objectives ofthe American College ofSurgeonsCommission on Cancer (ACoS-CoC) approved programs. Ifyou need any assistance or have any questions do not hesitate or have any question do not hesitate to call the Cancer Registry Department at ext. 62597. Sincerely,

Dr. Ravi Patel-Cancer -Committee Chair Dr. Albert Mc Bride -Cancer Committee Liaison Bonnie Quiii6nez,RHIT, eTR-Cancer Registrar

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

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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

EXHIBIT 29

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

34

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

Document 277-3

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1

1

UNITED STATES DISTRICT COURT

2

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

3

---------

4

4

DAVID F. JADWIN, D.O.,

Page 118 of 191 1

) Case No. 1:07-cv-00026-OWW-TAG )

5

5

Plaintiff,

) )

6

6

vs.

) )

7

7

COUNTY OF KERN; et al.

) )

8

8

Defendants.

)

_________________________) 9

9

10

10

11

11

12

12

13

13

14

14

OF

15

15

ALBERT McBRIDE, M.D.

16

16

Friday, August 15, 2008

17

17

Bakersfield, California

18

18

19

19

20

20

21

21

22

22

VIDEOTAPED DEPOSITION

Reported by:

Cindee L. LeFevre, CSR No. 7974

23 24

23

25 26

24

27 28

25

McBrideA

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

1

Document 277-3

MR. WASSER:

Filed 12/01/2008

Page 119 of 191 15

13:19:25 letter

1

He is responding, counsel.

13:19:27 him 13:19:32 13:19:32 have

2

speaks for itself.

3 4

a question about it, ask him a question about it. Q. I am going to remind you again, doctor.

13:19:37

5

a duty to respond to our questions.

13:19:37

6

A.

Okay.

I will respond to your question.

13:19:39 7 your 13:19:42 8 13:19:46 9 13:19:51 10 we

Q.

Okay.

Thank you, doctor.

The

2 3 4 5

He has the letter.

You want to ask

You

6 7 8 9 10 11 12

Can you state in

own words a summary of what this letter is about. A. It's asking Dr. Jadwin to present from the Department of Pathology information regarding data that

13 13:19:58 11

will need in the conference.

14 13:20:00 12

We're asking the presenters to maintain their

15 13:20:03 13

presentation to a minimum, and there's a reason for that

13:20:10 14

which you probably want to go into.

16 17 13:20:14 15

Q.

Dr. McBride, what's the reason?

13:20:17 16 As 13:20:20 17 Two

A.

I was the moderator for -- of the conferences.

18 19 20

the moderator, we had two presentations per morning.

21 22 23 24 25 26 27 28

13:20:26 18 within 13:20:28 19 presentation. 13:20:34 20 first 13:20:37 21 -13:20:41 22 13:20:45 23 all 13:20:49 24 13:20:52 25 and

presentations per morning. one hour's time.

We tried to get those in

That means half an hour per

The departments that were presenting these; the department that was presenting the case itself, the one of four departments presented each month. That presenter was a resident, generally, who had collected the data, presenting the material. Then we had the Department of Pathology present the pathologic findings,

McBrideA

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

1 2 3

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13:38:15 13:38:22 13:38:22 memo

1 2 3

remind people of what the time limits were? A. Yes, sir. Q. Okay. And as far as you can recall, did this

13:38:26

4

have a purpose of reprimanding anybody in particular?

13:38:30

5

A.

No.

13:38:33

6

Q.

Okay.

13:38:36

7

13:38:38

8

A.

No.

13:38:38

9

Q.

Okay.

4 5 6 And it wasn't meant -- intended to

7 reprimand Dr. Jadwin?

8 9 Let's turn to 189, please.

10 11 12 13

13:38:41 10 through. 13:39:26 11 13:39:28 12 to

Doctor, we are already a third of the way Okay. Doctor, you have been handed a document marked for identification as 189. Please take a moment

14 13:39:31 13

review it.

15 16 17 18 19 20

13:40:28 Exhibit 13:40:32 13:40:33 13:40:34 13:40:35 write at

14 15 16 17 18

Okay.

Doctor, now that you have reviewed

189, do you recognize it? A. Yes, I do. Q. Thank you. Tell me what it is, please. A. It's a letter that Dr. Harris asked me to

21 13:40:41 19

the end of that particular conference that day.

22 13:40:45 20

Q.

Okay.

Just to backup.

When you say the

23 13:40:47 21

conference that day, you are referring to the oncology

13:40:50 October, 13:40:54 13:40:56 13:40:57 Oncology

22

conference held monthly, which was for the month of

23 24 25

2005 was held on October 12; correct? A. Yes, sir. Q. Okay. And after the end of the October

24 25 26 27 28

McBrideA

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

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Page 121 of 191 29

13:41:00 13:41:04 13:41:05 you

1 2 3

Conference, is that when Dr. Harris approached you? A. Yes. Q. Okay. And can you recall exactly what he told

13:41:08

4

to do?

13:41:09 what 13:41:15 it

5 6

happened at the conference that day and present -- give

13:41:20

7

to him.

13:41:22

8

Q.

13:41:26

9

4 5 6 7

A.

Yes, he asked me to write a letter regarding

8 9 Okay.

And did he give you any other guidance

10 beyond just that?

11 13:41:26 10

A.

No.

13:41:27 11 draft 13:41:31 12 Harris?

Q.

Okay.

12 13 14

Now prior to Dr. Harris asking you to

this letter, Exhibit 189, had you complained to Dr.

15 13:41:37 13

A.

No.

13:41:39 14

Q.

No.

16 Okay.

Now, writing letters such as this

17 13:41:46 15

Exhibit 189, was that part of your function as -- one of

13:41:50 16

your job functions as the cancer committee liaison?

18 19 13:41:56 17

A.

I don't think so.

13:41:58 18

Q.

Okay.

13:41:59 19

A.

I was asked to do it because I am Medical

20 21 22 13:42:03 20

Director.

It's the only letter I have ever written like

13:42:06 21

that --

13:42:07 22

Q.

Okay.

13:42:07 23 that 13:42:08 24 13:42:09 25

A.

-- in the eight years that I have been there

23 24 25 26 27 28

I recall. Q. Okay.

McBrideA

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

1 2 3

A. Q. A.

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Filed 12/01/2008

Page 122 of 191 30

13:42:10 13:42:13 13:42:16 Harris

1 2 3

I was reluctant to write this letter. Okay. And why is that? Well, I just was. I didn't want to -- Dr.

13:42:20 people. 13:42:26 see,

4

was at the conference, Dr.

5

The conference was -- by the nature of that letter, you

13:42:30

6

it went over and we never got the presentations in.

13:42:36 but I 13:42:41 Harris.

7

4 5 6

Johnson was -- all these

7 8 9 10

8

But no, I did not want to write this letter, wrote it at the request, direction really, of Dr.

11 12 13

13:42:49 9 -13:42:54 10 case,

Q.

Okay.

And is following the direction of the

well, the directives of the medical director, in this

14 13:42:58 11

Dr. Harris, is that a part of your job function?

15 13:43:00 12

A.

I thought so.

13:43:01 13 up 13:43:04 14 directives

Q.

Okay.

16 17 18

So, therefore, that's why you did end

drafting this letter, because complying with the

19 13:43:07 15

of the medical director was part of your job; correct?

20 13:43:11 16

A.

Yes, sir.

13:43:13 17

Q.

Okay.

21 Now, were you at all uncomfortable in

22 13:43:16 18

writing Exhibit 189?

23 13:43:18 19

A.

Yes.

13:43:19 20 13:43:23 21 position 13:43:28 22 13:43:32 23 directly. 13:43:35 24 to 13:43:39 25

Q. A.

And how so? I just don't like to put myself down in a

24 25 26 27 28

like that. If I am going to have a discussion with somebody, I would just as soon discuss it with him It's not my position to -- I don't feel it's my position be put in a position like this, but I was directed to do

McBrideA

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

1 2 3 4 5 6

13:44:41 13:44:43 13:44:45 13:44:48 13:44:49 13:44:51 you

1 2 3 4 5 6

Document 277-3

A. Q. mentioned wall? A. Q.

Filed 12/01/2008

Page 123 of 191 32

Yes, I look at the clock. So in order to derive these times which are in 189, you had looked up at the clock on the I was keeping an eye on the clock. Now, during the conference, you didn't know

7 8 9 10 11

13:44:54 7 189, 13:45:00 8 13:45:00 9 13:45:01 10 such

were going to be asked by Dr. Harris to write Exhibit

13:45:03 11

exact times recorded here?

13:45:04 12

record times?

did you? A. Q.

No. So why is it is you still, nevertheless, had

12 Is it just your practice to

13 14 15 16 17 18

13:45:05 things. 13:45:09 13:45:09 13:45:11 clear

13

A.

My practice is to try to be on time to do

14 15 16

Q. A. Q.

Okay. I look at the clock a lot. Okay. So you just happened to have a very

19 20 21 22

13:45:13 17 this 13:45:16 18 13:45:16 19 only

recollection of all the times involved when you wrote

13:45:19 idea of 13:45:25 13:45:27 13:45:29 time 13:45:32 13:45:33

20

have half an hour for each one, you have a very good

21 22 23

how much time pretty much has gone by. Q. There's a lot of time pressure on you. A. Well, I thought so. Can I tell you why these

24 25

pressures are? Q. Sure.

letter? A.

When you have two cases to present and you

23 24 25 26 27 28

McBrideA

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1

A.

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Page 124 of 191 33

13:45:33 to

1

Because the other doctors are leaving at 8:30

13:45:37 Surgery 13:45:43 13:45:46 13:45:46 get

2

go to their various rounds and surgical procedures.

3 4 5

starts at 8:30 on those Monday -- Wednesdays. Q. Uh-huh. A. We lose those people. My intent was to try to

2 3 4 5 6 7 8 9 10 11 12 13

13:45:51 6 people 13:45:55 7 13:45:59 8 13:46:00 9 13:46:01 10 13:46:02 11 are

as much information to as many people and get as many

13:46:05 12

you confident these times are accurate in Exhibit 189?

involved in these discussions, et cetera. It's never perfect. Q. Okay. A. Never perfect. Q. So getting back to the times, here, doctor,

14 15 13:46:10 13

A.

They're roughly accurate.

13:46:12 14 situated 13:46:14 15 that

Q.

Okay.

16 17 18

Can you think of a person better

than yourself to know what the times were involved in

19 13:46:18 16

conference?

13:46:19 17

A.

20 Can I think of a better person for those

21 13:46:22 18

particular conferences?

22 13:46:23 19

Q.

At that -- no, I am talking about this October

23 24 25 26 27 28

13:46:26 to 13:46:30 13:46:31 13:46:38 13:46:41 13:46:45

20

12th conference.

Was there a person better positioned

21 22 23 24 25

know the time? A. No, this was all me. Q. Okay. Thank you. Now, were you upset by Dr. Jadwin's going over time at this October 12th, 2005 conference?

McBrideA

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

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13:46:45 1 13:46:48 2 13:46:54 3 pathologist.

A. No, I was not upset with Dr. Jadwin. I have always had a lot of professional respect for Dr. Jadwin. Frankly, I think he is a very good

13:46:57 him 13:46:59 he

4

He gives a lot of good information.

5

that I would like to listen to him the entire hour, and

13:47:03 that. 13:47:08 I

6

can tell you that that's a true statement.

13:47:10

8

am trying to get a case presented and these other people

13:47:12

9

have prepared to present it too.

4 5 6

And I've even told

7 8 9

7

I told him

But I am not the only one in that conference.

10 11 12 13 14 15

13:47:15 10 was 13:47:20 11 13:47:21 12 you're

So, you know, I come off as the bad guy, but I necessarily the moderator. Q. There's no implication, Dr. McBride, that

16 13:47:25 13

the bad guy here, at least not from us.

13:47:29 14

clear.

Just to be very

17 18 13:47:30 15

Dr. McBride, I just want to walk through the

19 13:47:32 16

times, because the times have become a very big issue in

13:47:36 17

this litigation for some odd reason.

20 Now --

21 13:47:39 18

A.

Okay.

13:47:40 19

Q.

Okay.

22 And I will tell you right now, this is

23 13:47:42 20

probably one of the most important exhibits of today's

13:47:46 21

deposition.

24 25 26 27 28

13:47:46 22 conference, 13:47:49 23 assume; 13:47:54 24 13:47:56 25

Okay.

Now, this conference, the first

Presentation A of the morning, it started at 7:30, I correct? A.

Again, I usually try to start at 7:30.

McBrideA

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

1 2

Q. A.

Document 277-3

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Page 126 of 191 36

13:48:57 13:48:59 in

1 2

Okay. And then when the presenter gets to that point

13:49:03 present 13:49:07 that.

3

his presentation, then he asks the pathologist to

4

the findings, and then the pathologist comes and does

13:49:10 want 13:49:13 the

5

That's depending on the presenter.

6

the radiologist to present a little first, but, usually,

13:49:19

7

pathologist presents first.

13:49:20 to 13:49:23 13:49:27 13:49:27 13:49:31 13:49:34 time.

8

3 4 5 6 7 8

He may

9 10 11 12 13 14 15 16

9 10 11 12 13

So it was up to Dr.

Alkhouri to determine --

ask Dr. Jadwin in this case to present. Q. I understand. So the moderator -A. The presenter is essentially in control of his presentation. I am just the moderator, just hoping they just kind of get it all in sequence and get it in in

17 13:49:38 14

Q.

Understood.

And the moderator tends to be a

18 13:49:40 15

resident; correct?

19 13:49:41 16

A.

Generally, yes.

13:49:42 17

Q.

And this is part of the resident's training?

13:49:44 18

A.

Yes, it is.

13:49:44 19

Q.

Learning how to stand up and talk?

13:49:47 20

A.

Absolutely.

13:49:48 21

Q.

Okay.

20 21 22 23 24 So the first -- according to your line

25 26 27 28

13:49:50 13:49:53 sorry, 13:49:57 five 13:50:00 at

22 23

here, the first sentence of your second paragraph, Presentation B started at about five minutes -- I am

24

Presentation A ended a little bit late, went over about

25

minutes.

Does that suggest that presentation A started

McBrideA

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

1 2 3 4 5 6 7

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1 2 3 4 5 6 7

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8:05 a.m. A. Yes. Q. Okay. Just following your letter, then Dr. Alkhouri presented. Now, you must have moderated over, well, scores of those cancer committee conferences? A. Many, many. Q. Many. Typically how long -- well, do you

8 9 10 11 12

13:50:21 8 salient 13:50:25 9 13:50:28 10 13:50:29 11 would

specifically how long Dr.

Alkhouri took to present

13:50:31 12

that initial introduction be by the resident?

features of the second case? A. No, I don't know. Q. Well, based upon your experience, how long

13 14 13:50:34 13

A.

Some do a very fine presentation and do it

13:50:39 14 corral 13:50:44 15 the

succinctly.

13:50:48 16

radiologist.

13:50:51 17

along a little bit.

15 16 17

Some ramble a little more, and I have to

them in a little bit so we can get it into -- let's get

18 So I kind of say, you know, let's move it

19 20 21 22

13:50:54 18 it 13:50:55 19 maybe

Q.

Keep it going.

So would it be -- I mean, does

sound -- is it typical that the presenter would take

23 13:50:57 20

about five minutes to introduce the case?

24 13:51:00 21

A.

It's a rough estimate.

13:51:01 22

Q.

Okay.

13:51:02 23

A.

Just a rough estimate.

13:51:03 24

Q.

Okay.

13:51:04 25

A.

Yes, it does.

25 26 27 It ranges all over the place?

28

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13:52:09 perhaps,

1

And finally, I think when we keep going,

13:52:13 there 13:52:16 Jadwin

2

to the last paragraph, second sentence, and finally,

3

was less than five minutes past, and then at 8:25 Dr.

13:52:21

4

sat down; correct?

13:52:25

5

A.

Yes, I believe that's how it happened.

13:52:27

6

Q.

Okay.

13:52:29

7

Presentation B started at 8:05.

13:52:34

8

Jadwin sat down at 8:25?

13:52:37

9

A.

Apparently.

13:52:37 10 both 13:52:41 11 8:05

Q.

Okay.

2 3 4 5 Do you see the third paragraph?

6 7 So I just want to be very clear.

8 It ended -- well, Dr.

9 10 11 12 13

Dr.

So during that 20-minute time span,

Alkhouri and Dr. Jadwin spoke.

Dr.

Alkhouri at

14 15 16

13:52:47 12 then 13:52:48 13 that

stood up to present the case or introduce the case, and

13:52:52 14

correct?

he sat down, and then Dr. Jadwin spoke 'til 8:25.

Is

17 18 13:52:52 15

A.

Yes, that's probably correct.

13:52:54 16 that 13:52:58 17 13:53:00 18 13:53:00 19 13:53:00 20 13:53:03 21 breaking 13:53:09 22 Dr. 13:53:14 23 13:53:20 24 going 13:53:26 25 precisely

Q.

Okay.

19 20 21 22 23 24 25 26 27 28

Well, is there any reason to believe

anything else happened differently? A. No. Q. No. A. That's how I recall it pretty much. Q. Thank you. Now, do you recall a dispute out between Dr. Jadwin and Dr. Roy during the course of Jadwin's presentation of October 12, 2005? A. Well, I -- I think that there were disputes on between them, but I can't tell you the nature

McBrideA

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14:01:16 and

1

write letters is to be abbreviated and not to write War

14:01:19

2

Peace; right?

14:01:20

3

A.

True.

14:01:21

4

Q.

So I guess what I am trying to ask is if Dr.

14:01:26 the 14:01:31 detail

5

Jadwin had engaged in some kind of aberrant behavior at

6

October conference, do you think that's an important

14:01:34 what 14:01:36 14:01:37 That's

7

you would have included in your abbreviated account of

8 9

happened that day in Exhibit 189? MR. WASSER: He's answered the question.

2 3 4 5 6 7 8 9 10 11 12 14:01:39 10

the third variation of it.

13 14 15

14:01:41 11 aberrant 14:01:45 12 was

A.

I don't know that he did engage in any

behavior.

All I know is just the time went by.

And I

16 14:01:48 13

not unhappy with his presentation.

He had a lot of good

14:01:52 14 hour 14:01:55 15 what

material to present.

14:01:58 16 in 14:02:02 17 14:02:06 18 Let's

we were trying to get.

14:02:11 14:02:17 a 14:02:21 14:02:21 14:02:22 14:02:23 silly, 14:02:26

19 20

say Dr. Jadwin strips naked, runs around the conference room, and starts assaulting people, do you think that is

21 22 23 24

detail you would have included in Exhibit 189? MR. WASSER: That is a ridiculous question, counsel. MR. LEE: I mean, I know it's a little bit

25

but I do --

17 18 19

As I told you before, the whole

could have been with his presentation, but that wasn't

20 21 22 23

We're trying to get everything

here, and I know that we were running out of time. Q. Okay. Let me pose another hypothetical.

24 25 26 27 28

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1 2 3 4

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14:04:54 14:04:58 14:05:00 14:05:00 do,

1 2 3 4

Lau actually had presentations to give that day? MR. WASSER: Dr. Lau? Q. Dr. Chester Lau? A. I just assume he did. Radiologists generally

14:05:05

5

but --

14:05:06

6

Q.

You don't know one way for --

14:05:07

7

A.

I don't know one way or another.

14:05:09

8

Q.

Okay.

5 6 7 8 And who is Dr.

Desai, D-e-s-a-i.

9 10 11 12

14:05:12 9 A. A medical oncologist who works for Comprehensive 14:05:18 10 Blood and Cancer Center. He's a radiation oncologist. 14:05:25 11 Q. And he was scheduled to give some comments at this

13 14:05:29 12

presentation?

14 15 16

14:05:30 13 A. Yes. I always expected the medical oncologists to 14:05:35 14 give some comments. That was very cogent to our review and

17 18 19 20

14:05:42 15 of a 14:05:45 16 14:05:47 17 the

discussion and what we're to do in terms of management

14:05:50 18 five-minute 14:05:53 19 14:05:55 20 that,

morning ran over by about five minutes.

14:05:58 21

but that happened.

14:06:01 14:06:03 was 14:06:06 14:06:07

22 23

Q. Sure. So, I mean, it wasn't uncommon to see a presentation run over, say, about five minutes. That

24 25

not uncommon? A. No, it was not uncommon.

case.

They're very important. Q. Now, you mentioned the first presentation of

21 22 23 24

overruns common? A. Yeah. Yeah, they were.

Were

And I didn't like

25 26 27 28

McBrideA

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1

Q.

Document 277-3

Okay.

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14:06:12 of

1

And to your recollection, do you know

14:06:15

2

any other physician receiving a letter of reprimand for

14:06:19

3

running over time at this cancer committee conference?

14:06:23

4

14:06:24

5

BY MR. LEE:

14:06:25

6

Q.

I am sorry.

14:06:27

7

A.

No.

14:06:29 the 14:06:32 14:06:35 14:06:36 14:06:37 14:06:48 14:06:51 14:06:54 14:06:54 14:06:56 am

8

Q.

It's a really --

2 3 4 MR. WASSER:

At that particular conference?

5 6 At any oncology conference.

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

9 10 11 12 13 14 15 16 17

you haven't -- have you seen

letter of reprimand that was issued to Dr. Jadwin? A. No. Q. Okay. So we can't even discuss it. Okay. You said you don't have a lot of familiarity with pathology; correct? A. I don't have a lot of familiarity with pathology. Q. Maybe I misheard you. A. I have a lot of familiarity with Pathology.

19 14:07:01 18

a urologist.

14:07:01 19

Q.

14:07:04 20

better.

20 Okay.

I am an attorney, so I don't know any

Okay.

Well, if there is a case where the

21 22 14:07:05 21 23 14:07:11 22

pathology, pathologic findings, for the patient are

14:07:16 23 orientation 14:07:23 24 that's

incorrect, based upon poor histology, incorrect

14:07:26 25 they

important information for the clinician to know before

24 25 26

of the slide, in that particular case, do you think

27 28

McBrideA

I

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

1 2

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14:07:30 14:07:32 of

1 2

operate on the patient? A. I don't know where -- I don't know what kind

14:07:35 rely 14:07:39 or

3

answer you want from me.

4

on the final report from the pathologist as to what is

14:07:44 and 14:07:49 14:07:52 14:07:56 me in

5

isn't the pathologic finding, but if I am going to go

6 7 8

tell a pathologist, oh, you're wrong, no, that's not my position, and I am not that good. I cannot compete with them in that realm any more than they can compete with

14:08:00

9

cutting out a kidney.

3 4 5

I am not a pathologist.

We

6 7 8 9 10 11 12 13 14

14:08:02 10 Conference 14:08:06 11 that.

Q.

All right.

Well, the October Oncology

was about a hysterectomy.

I don't know if you recall

15 14:08:09 12

I will represent to you that it was about a hysterectomy

14:08:12 13

procedure.

16 17 14:08:13 14

A.

All right.

14:08:14 15

Q.

Okay.

18 And Dr. Jadwin's presentation, which is

19 20 21

14:08:18 16 181 -14:08:21 17 histology

actually that exhibit in front of you -- it's Exhibit

14:08:26 18 14:08:30 19 14:08:35 20 corroborated, 14:08:39 21 14:08:43 22 was 14:08:47 23 have 14:08:53 24 based 14:08:59 25 on

in the pathology for this hysterectomy patient, that the pathology -- the slides were incorrectly oriented and leading to results that he thought should be

that presentation pointing out that there was poor

22 23 24 25 26 27 28

and therefore, that's what the presentation - was about. Now that I have laid out what the presentation about, would you agree that it's an important thing to the pathology corrected, the pathologic findings be upon a good histology prior to conducting a hysterectomy

McBrideA

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

1 2 3 4 5 6 7 8 9

14:09:03 14:09:04 14:09:06 14:09:10 14:09:14 14:09:17 14:09:20 14:09:21 14:09:24 operation

1 2 3 4 5 6 7 8 9

Document 277-3

Filed 12/01/2008

Page 133 of 191 52

a patient? A. I couldn't agree with you more. Q. Okay. Okay. Would you say it would almost be medically irresponsible to conduct a hysterectomy on a patient based upon poor histology? A. Well, that certainly is a -Q. It's a tough question. A. It's a tough question, but the answer is, obviously, yes. I mean, you want to do the right

10 14:09:30 10

for the right pathology --

11 14:09:32 11

Q.

Right.

14:09:32 12

A.

-- on anything

14:09:34 13

Q.

Right.

12 13 I mean, you can't think of a situation

14 15 16 17

14:09:36 14 patient 14:09:40 15 14:09:45 16 don't

where it would be advisable to perform surgery on a

14:09:49 17 have a 14:09:52 18 doing.

think you should operate on something that you don't

based on poor histology; right? A. You're asking me personally, yeah, right, I

18 19 20

good diagnosis on unless you're sure of what you're

21 14:09:55 19

Q.

Okay.

And in your opinion -- well, in your

22 14:09:56 20

opinion, can an appropriate treatment plan be based on

14:10:00 21

inaccurate pathologic findings based on poor histology?

23 24 14:10:05 22

A.

No.

14:10:05 23 was 14:10:12 24 14:10:17 25 assume

Q.

No.

25 26 27 28

Okay.

Now, actually, this patient which

the topic of this Exhibit 181 had a tubal ligation. So, in other words, we could that safely

McBrideA

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

1

A.

Document 277-3

Filed 12/01/2008

Oh, I have never seen this.

Page 134 of 191 54

14:12:47 first

1

Not one -- the

14:12:51

2

14:12:51

3

Q.

Okay. So --

14:12:52

4

A.

It was a CC, it never got to my hands.

14:12:55

5

Q.

Okay.

14:12:57

6

14:13:02 that 14:13:05 14:13:11 14:13:14 14:13:17 14:13:20 14:13:22 14:13:22 seen

7

2 time.

3 4 5 So then, is that your e-mail address,

6 [email protected]?

7 8 9 10 11 12 13 14 15

8 9 10 11 12 13 14

A.

No, it's not.

Oh, wait.

That's a -- yeah,

is.

That's a -- but that doesn't mean that I saw this. Q. Okay. So to the best of my recollection, you haven't seen this e-mail before? A. To the best of my recollection, this was never sent to me. Q. Okay. A. Despite that that's in there, I have never

16 14:13:23 15

this, on a stack of bibles.

17 14:13:23 16

Q.

I am sorry.

14:13:26 17 this. 14:13:29 18 the

A.

I am -- on a bible, I have never ever seen

Q.

Not even necessary.

14:13:30 19

way, just --

14:13:31 20

A.

What you get from me today is total honesty.

14:13:34 21

Q.

I can see that, and I appreciate it very much,

14:13:37 22

doctor.

And I can tell you it's going to speed things a

14:13:41 23

long very much.

18 19 20

I understand, doctor.

By

21 22 23 24 25 26 27 28

14:13:43 24

Why don't we move on then to 202, please.

14:14:19 25

Okay.

Doctor, you have been handed a document

McBrideA

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

1

14:14:23 going to

1

Document 277-3

Filed 12/01/2008

Page 135 of 191 55

marked for identification as Exhibit 202.

And I am

2 3 4 5

14:14:28 2 if 14:14:32 3 14:15:36 4 recognize

ask you to familiarize yourself with this briefly to see

14:15:38

5

this letter?

14:15:38

6

A.

Yes, I do.

14:15:41

7

Q.

Can you tell me what it is.

14:15:42

8

A.

Well, briefly, it's describing Dr. Jadwin's

you recognize it. All right, doctor.

Is this -- do you

6 7 I remember this letter.

8 9 10 11 12 13

14:15:46 9 Canada, 14:15:49 10 14:15:52 11 important

difficulty with time constraints, getting back from

14:15:55 12 support 14:15:59 13 conferences

ones that he felt that he had to make, and he had

14:16:08 14

requiring pathologic presentation, that the pathologic

14:16:12 and 14:16:16 14:16:19 14:16:19 14:16:22 with

15

presentation was by far the most important part of that,

16 17 18 19

I -- I didn't disagree with him then. Q. Okay. A. In fact, Dr. Jadwin and I discussed this afterwards. As I said before, I never had disagreement

14:16:25 that 14:16:32 14:16:32 these 14:16:37 not. 14:16:41 14:16:45

20

his ability and even his comments that pathology was

21 22

important.

23

conferences should be an hour on each case, but they're

24 25

They haven't been over there, and -- but his points are well-taken. I never disagreed with that.

whatever, and finally, realizing that he had a very important presentation to make, one of the most

14 15 16

from this Fox or wherever the center was, that

17 18 19 20 21 22 23 24 25 26 27 28

Quite frankly, I think they are.

McBrideA

I think

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

1 2

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Page 136 of 191 57

14:17:39 14:17:42 no

1 2

And I am going to ask you, do you think that's referring to Dr. Jadwin's assertion that radiology had

14:17:48

3

pertinent or significant radiologic findings that day?

3 4 5 6 7 8 9 10 11 12

14:17:51 4 until 14:17:55 5 14:17:56 6 14:17:57 7 14:17:59 8 14:18:01 9 14:18:04 10 14:18:05 11 is

A.

In retrospect, I did not realize all this

the conference was already all over. Q. Okay. A. Okay. The bottom line is his points well-taken regarding the pathology, this whole Q. Okay. So when you look at this -- I A. No, I am sorry. Q. Okay. When you look at Exhibit 202,

were thing. am sorry. doctor,

13 14 15 16

14:18:09 12 in 14:18:12 13 14:18:13 14 have

there anything that you disagree with that's contained

14:18:17 15

talked about most of my disagreements and concerns.

this letter? A. I can't really disagree with -- I think we

17 18 14:18:21 16

Q.

Okay.

14:18:22 17

A.

And I think addressed to this letter.

14:18:25 aspect 14:18:27 14:18:32 14:18:32 14:18:36 you

Q.

Okay.

19 20 21 22 23 24 25

18 19 20 21 22

So I mean -- actually, is there any

of this letter that you disagree with or find to be untrue? A. With what little time I have had to peruse it again, I am not in disagreement with anything, but if

26 14:18:39 23

want to point out something.

27 28

14:18:42 24 end, 14:18:45 25

Q.

Actually, doctor, we are getting close to the

so if you wouldn't mind, could you just read the letter

McBrideA

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

Document 277-3

bit, I think.

Filed 12/01/2008

Page 137 of 191 91

1

15:14:17

1

More so than most, I guess.

2

15:14:24

2

Q.

Okay.

3

15:14:25

3

A.

Actually, I would see him in the cafeteria and

I 4 15:14:30

4

used to go over there and sit down with him and vice

5

versa.

6

15:14:33

5

I actually -- you know, I used to talk to him.

7

15:14:36

6

friendly, communicated.

8

15:14:38

7

Q.

Okay.

9

15:14:38

8

A.

We had a pretty good professional

Q.

Okay.

We were

relationship. 10 15:14:40

9

So did you find Dr. Jadwin to ever be

11 15:14:46 10

unprofessional with you?

12 15:14:47 11

A.

Never.

15:14:48 12

Q.

Okay.

13 Are you aware of any instances where

14

Dr.

15

15:14:51 13

16

15:14:54 14

A.

Not to me.

17

15:14:55 15

Q.

Okay.

18

15:14:56 16

A.

I have no idea.

19

15:14:57 17

Q.

Okay.

20

15:14:57 18

A.

I have no idea what he did with others.

21

15:15:00 19

Q.

None that you're aware of?

22

15:15:01 20

A.

Not that I am aware of.

23

15:15:03 21

Q.

Okay.

Jadwin acted inappropriately in your opinion? Or towards anybody?

Are you aware of any instances where

Dr. 24 15:15:07 22

Jadwin just lost his temper with anybody?

25 15:15:09 23

A.

No.

15:15:10 24

Q.

Okay.

26 27

Dr.

28

15:15:14 25

Are you aware of any instances where

Jadwin threatened anybody?

McBrideA

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

1 2

A. Q.

Document 277-3

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15:15:14 15:15:15 Jadwin

1 2

No. Are you aware of any instances where Dr.

15:15:18

3

15:15:20

4

A.

No.

15:15:22 Dr. 15:15:26 15:15:28 15:15:29 Dr.

5

Q.

Okay.

6 7 8

Jadwin was insulting people? A. No. Q. Okay. Are you aware of any instances where

15:15:34

9

Jadwin was making false allegations against people?

3 raised his voice at anybody?

4 5 6 7 8 9

Are you aware of any instances where

10 11 15:15:37 10

A.

No.

15:15:39 11

Q.

Okay.

12 So would you say -- did you -- can you

13 14 15 16 17

15:15:42 Dr. 15:15:46 15:15:47 15:15:50 I

12

recall any instances where any interactions you had with

13 14 15

Jadwin were unpleasant? A. They were all very pleasant, and I can comment that he helped me a lot up in the operating room. When

18 19 20 21

15:15:53 16 always 15:15:58 17 15:15:58 18 getting

would call pathology, come up and see a case, he was

15:16:02 how 15:16:06 15:16:10 15:16:14 15:16:19 with 15:16:23 15:16:25

19

more appropriate biopsies on prostates, helped us with

20 21 22 23

to do that a little better, and how to manage testicular tumor pathology reports, you know, specimens. No, I can honestly say that the relationship professionally was good with me and him. What he did

24 25

any other people, I have no idea. Q. Uh-huh. Of course. Okay.

right there. And I can honestly say he helped me with

22 23 24 25 26 27 28

McBrideA

What's the -- I am

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

1 2 3 4 5

Document 277-3

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15:21:15 15:21:17 15:21:20 15:21:23 15:21:24 lodged

1 2 3 4 5

Q. Okay. Are you aware of any instances of other core physicians filing green papers, complaints? A. Not that I know of. I have no knowledge of anything like that. Q. Are you aware of any complaints ever being

15:21:26

6

against you at Kern Medical Center?

15:21:29

7

A.

No.

15:21:33 Royce 15:21:36 Center?

8

Q.

No.

6 7 8 9 10

9

Okay.

Can you recall a time when Dr.

Johnson took a medical leave from The Kern Medical

11 15:21:40 10

A.

Dr. Johnson took a medical leave?

15:21:41 11

Q.

Yes.

15:21:42 12

A.

Really.

15:21:43 13

Q.

No?

15:21:44 14

A.

No.

15:21:44 his 15:21:48 15:21:53 15:21:55 I

Q.

Okay.

12 13 14 15 16 17 18 19 20

15 16 17 18

Can you recall a time when Dr.

Naderi,

son got into a car accident, and he was on some kind of leave for about a month or so? A. I don't know that -- I didn't know he'd left.

21 22 23 24 25 26

15:21:58 19 That 15:22:01 20 15:22:06 21 15:22:09 22 15:22:12 23 questions

knew I had read about his son getting in an accident.

15:22:14 24 15:22:15 25 what

you asked him today. A. I have no idea.

was pretty common knowledge around the hospital. Q. Are you familiar with the circumstances of Dr. Sheldon Friedman's departure from KMC? MR. WASSER: That was one of the first

27 28

McBrideA

I don't know why he left or

McBRIDE, M.D. Case 1:07-cv-00026-OWW-TAG

Document 277-3

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Page 140 of 191 08-15-08 Page 109

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

ss.

3

4

I, Cindee L. LeFevre, a Certified Shorthand

5

Reporter in the State of California, holding certification

6

No. 7974, do hereby certify that ALBERT McBRIDE, M.D.,

7

the witness named in the foregoing deposition,

8

was by me duly sworn; that said deposition was taken

9

Friday, August 15, 2008, at the time and place set forth

10 11

on the first page hereof. That upon the taking of the deposition, the

12

words of the witness were written down by me in stenotypy

13

and thereafter transcribed by computer under my supervision;

14

that the foregoing is a true and correct transcript of the

15

testimony given by the witness.

16

I further certify that I am neither counsel for

17

nor in any way related to any party to said action, nor in

18

any way interested in the result or outcome thereof.

19

20

Dated this 9th day of September, 2008, at Bakersfield, California.

21 22 23 24

~L:)~ LeF~O. Cindee L.

7974

25

VS. &

RANDALL

COUNTY (800)

322-4595

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

Document 277-3

Filed 12/01/2008

Page 141 of 191

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

EXHIBIT 30

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

35

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

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Page 142 of 191

Albert MfeBride, MD; Department of Surgery Kern Medical Center Bakersfield, California 93305 19 October 2005

Dear Dr. McBride: I wish to express my apology for the confusion that occurred at the October Oncology Conference. I had traveled to Canada on the preceding Saturday to attend a family Canadian Thanksgiving Holiday on Monday and the return trip on Tuesday night was long and complicated. I worked on the presentation most of the trip and returned to Bakersfield after midnight on the day of the conference. With barely four hours of sleep I was intensely focused on the presentation to be given and because of my absence from the country and fatigue I did not have an opportunity to discuss this case with you before hand. Since the pathology department has presented concise, well organized presentations for years, I felt that I would be respectfully given the latitude to make the presentation without discourteous interruption. I worked many hours to put together a pathology presentation that would detail the problems encountered with this patient's care and hopefully improve general awareness about important KMC patient care issues I feel that this presentation was perhaps the most important that I have delivered at a KMC Oncology Conference. It was a standard pathology case presentation that would be found in any oncology conference around the country; a detailing of the specimens received, gross & microscopic findings, diagnosis and conclusions. The director of the Fox Chase Cancer Center, one of the very top cancer centers in the world, has stated to me that it is not reasonable to limit the time of the pathology presentation, but rather that the time spent should relate to the complexity of the case that is presented. The guiding operational principle for me was and is that content is more important than the time the conference is concluded. Certainly other oncology conferences have run over without incident and most other conferences throughout the institution run over all of the time. It was certainly difficult for me to focus on continuity issues with the inappropriate distractions that Dr. Harris made during my presentation. If there had been questions asked in a standard manner, I would have been glad to respond to any issues at the time in the form of a question, but I was not given that opportunity. Unfortunately, there were misperceptions that 1 was stealing other people's time, when such was not the case. As you hopefully now know, there were no management issues or diagnosis issues other than pathology to be discussed. Again, I am sorry for the confusion about the issues surrounding my presentation.

1/ "—

David F. Jadwin, DO Chair, Department of Pathology

CC: Eugene Kercher MD, Scott Ragland DO, Jennifer Abraham MD, Irwin Harris MD, Royce Johnson MD, Maureen Martin MD, Leonard Perez MD, George Alkouri MD Exhibit 202 Susan R. Wood, CSR # 6829

08/13/08 Irwin Everett Harris, M.D.

DFJ00591

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

Document 277-3

Filed 12/01/2008

Page 143 of 191

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

EXHIBIT 31

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

36

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

C

.. Dept

~ Status

· .-

-

Document 277-3

Filed 12/01/2008

Page 144 of 191

..... ..,.

Organization

Visual

Oral

R R R

Clin Disc

2 2

Impact

2 2

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2

2

1

1

R S

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

Document 277-3

Filed 12/01/2008

Page 146 of 191

• KERN

MEDICAL • CENTER

ONCOLOGY CQNFERNCE DATE: October 12,2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P.

IOB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Perfonnance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

Case Presenter Organization of Presentation Quality of Visual Presentation Quality of Oral Case Presentation Quality of Subsequent Clinical Management Discussion Impact of Management Discussion on KMC Patient Care Overall Presentation Rating I learned new information while attending this conference:

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Signature: (Optional)

000051.5

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

Document 277-3

Filed 12/01/2008

Page 147 of 191

• KERN • MEDICAL . CENTER

ONCOLOGY CQNFERNCE DATE: October 12; 2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P.

IOB/OYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. O. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

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

Document 277-3

Filed 12/01/2008

Page 148 of 191

• KERN . MEDICAL • CENTER

ONCOLOGY CONFERNCE 1)ATE: October 12,2005

Sponsoring Department: D Dept. of Med. D F.P. IOB/GYN

D Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

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3- Needs Improvement

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

Document 277-3

• KERN • MED.ICAL CENTER

Filed 12/01/2008

Page 149 of 191

ONCOLOGYCONFERNCE DATE: October 12, 2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P. IOB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement B

A

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

Document 277-3

· KERN II,MEDICAL CENTER

Filed 12/01/2008

Page 150 of 191

ONCOLQOYCQNFERNCE 1)ATE: October 12,2005 ------~-­ ~------

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3- Needs Improvement

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

Document 277-3

Filed 12/01/2008

Page 151 of 191

• M.EDICAL KERN

.• CENTER

ONCOLOGYCONFERNCE DATE: October 12, 2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P.

IOB/GYN

0 Surgery

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2- Satisfactory

3- Needs Improvement

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

Document 277-3

Filed 12/01/2008

Page 152 of 191

· ... KERN •• •. MEDICAL

"'II.

CENTER

QNCOLOC;YCQNFERNCE DATE: October 12,2005

Sponsoring Department: 0 Dept. of Med. D F.p.1 OB/GYN

0 Surgery

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2- Satisfactory

3- Needs Improvement

Case Presenter Organization ofPresentation Quality of Visual Presentation Quality of Oral Case Presentation Quality of Subsequent Clinical Management Discussion Impact of Management Discussion on KMC Patient Care Overall Presentation Rating I learned new information while attending this conference: The information I learned will improve my clinical practice: How would you rate the overall presentation from Pathology? How would you rate the overall presentation froin Radiology?

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

Document 277-3

Filed 12/01/2008

Page 153 of 191

• KERN • MEDICAL . CENTER

ONCOLQGYCONFERNCE DATE: October 12, 2005

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

Document 277-3

Filed 12/01/2008

Page 154 of 191

• KERN

,MEDICAL • CENTER

ONCOLO(rY CONFERNCE DATE: October 12, 2005

SponsoringDepartment: 0 Dept. ofMed. 0 F.P. ;, OB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

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

Document 277-3

• KERN MEDICAL • CENTER

Filed 12/01/2008

Page 155 of 191

ONCOLOGY CQNFERNCE DATE: October 12,2005

Sponsoring Department: 0 Dept. of Med. 0 F.P. IOB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3.- Needs Improvement

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

Document 277-3

Filed 12/01/2008

Page 156 of 191

ONCOLOGY CONFERNCE lJATE: October 12,2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P.

IOB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

Case Presenter Organization of Presentation Quality of Visual Presentation Quality of Oral Case Presentation Quality of Subsequent Clinical Management Discussion Impact of Management Discussion on KMC Patient Care Overall Presentation Rating I learned new information while attending this conference: The information I learned win improve my clinical practice:

,

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Comments:

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-----~-------

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Signature: (Optional)

0000525

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

Document 277-3

Filed 12/01/2008

Page 157 of 191

. KERN I MEDICAL

I. CENTER

ONCOLOGYCONFERNCE DATE: October 12, 2005

SponsoringDepartment: D Dept. ofMed. 0 F.P.

IOB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

Case Presenter Organization ofPresentation Quality of Visual Presentation Quality of Oral Case Presentation Quality of Subsequent Clinical Management Discussion Impact of Management Discussion on KMC Patient Care Overall Presentation Rating I learned new information while attending this conference: The information I learned will improve my clinical practice: How would you rate the overall presentation from Pathology?

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Signature: (Optional)

0000526

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

Document 277-3

• KERN MEDICAL • CENTER

Filed 12/01/2008

Page 158 of 191

ONCOLOGY CONFERNCE

l)ATE: October 12,2005

Sponsoring Department: 0 Dept. ofMed. 0

F.p.1 OB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri ~erformance

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2- Satisfactory

3- Needs Improvement A

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0 Pathology

0 Radiology

------------

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

Document 277-3

Filed 12/01/2008

Page 159 of 191

··KERN • MEDICAL • CENTER

ONCOLOGY CONFERNCE

l)ATE: October 12, 2005

Sponsoring Department: 0 Dept ofMed. 0 F.P.

IOB/GYN

0 Surgery

Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

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Signature: (Optional)

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

Document 277-3

Filed 12/01/2008

Page 160 of 191

w.o., • KERN

MEDICAL ~ • CENTER o

ONCOLOGY CONFERNCE DATE: October 12, 2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P.

lIoB/GYN

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Presenter A: Dr. N. Sharkey Presenter B: Dr. G. Alkhouri Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

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Signature: (Optional)

0000529

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

Document 277-3

KERN • CENTER

Filed 12/01/2008

Page 161 of 191

. MEDICAL ONCOLOGY CONFERNCE DATE: October 12, 2005

Sponsoring Department: 0 Dept. ofMed. 0 F.P.

IOB/GYN

0 Surgery

Presenter A: Dr. N.Sharkey Presenter B: Dr. G. Alkhouri Perfonnance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement

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ONCOLOGY CONFERNCE DATE: October 12, 2005

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Filed 12/01/2008

Page 170 of 191

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Document 277-3

Filed 12/01/2008

Page 171 of 191

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. CENTER

ONCOLOGY CONFERNCE DATE: October 12, 2005

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3- Needs Improvement

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Filed 12/01/2008

Page 172 of 191

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ONCOLOGY CONFERNCE l)ATE: October 12,2005

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Filed 12/01/2008

Page 175 of 191

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Page 176 of 191

ONCOLOGY CONFERNCE DAtE: October 12, 2005

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2- Satisfactory

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Document 277-3

• KERN MEDICAL • CENTER

Filed 12/01/2008

Page 177 of 191

ONCOLQGY CONFERNCE DATE: October 12,2005

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Document 277-3

Filed 12/01/2008

Page 178 of 191

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ONCOLOGY CONFERNCE DATE: October 12, 2005

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Document 277-3

·. KERN :MBJCAL . CENTER

Filed 12/01/2008

Page 179 of 191

ONCOLOGY CONFERNCE DATE: October 12, 2005

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From: To: Date: Subject:

Document 277-3

Filed 12/01/2008

Page 180 of 191

Serena Sepulveda-Rini David Jadwin. DO 10/14120052:43:20 PM Fwd: Re: Oncology Conference

Serena Sepulveda-Rioi Office Services Assistant Lab - Pathology Kern Medical Center [email protected] 661-326-2259 *********. CONFIDENTIALITY STATEMENT

.*******.*

This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged. confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination. distribution or copying of the communication is strictly prohibited. If you received this communication in error. please notify us immediately by telephone and return the original message to us at the e-mail address above. Thank you. OWNED AND OPERATED BY THE COUNTY OF KERN 1830 Flower Street, Bakersfield California 93305-4197 (661) 326-2416

»> Laura Quinonez 10/14/20052:42:51 PM >>> 35 Residents; 25 Medical Students; 25 Staff Members Note: Staff Members Include the following: Cancer registristry staff; outside physicians Regards. Laura Heredia-Quinonez Oncology Clinic Coordinator Cancer Registry/Kern Medical Center (661) 326-5692 (661) 862-7623 (fax) [email protected]

>>> Serena Sepulveda-Rini 10/14/20052:10:08 PM »> Hi Laura. Dr. Jadwin would like to know how many people attended the conference. How many were staff and how many were residents? Thank you, Serena

Serena Sepulveda-Rini Office Services Assistant Lab - Pathology

0000549

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

Document 277-3

Filed 12/01/2008

Page 181 of 191

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

EXHIBIT 32

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

37

1

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

I!'E"%AL CENTER

Sponsoring Department: Presenter A:

Document 277-3

Filed 12/01/2008

Page 182 of 191

ONCOLOGY CONFERNCE DATE: November 9,2005

I.M.

F.P.

OBIGYN

Surgery

Dr. Ryan Hudson

Presenter B: Dr. Steven Chen Performance Rating: 1- Very Good

2- Satisfactory

3- Needs Improvement B

A

Case Presenter Organization of Presentation Quality of Visual Presentation Quality of Oral Case Presentation Quality of Subsequent Clinical Management Discussion Impact of Management Discussion on KMC Patient Care Overall Presentation Rating I learned new information while attending this conference:

d:s

NO

d e s

NO

The information I learned will improve my clinical practice:

d e s CI NO

d e s

NO

I ,

f.-

1

5

-

?a

How would you rate the overall presentation from Pathology?

5

How would you rate the overall presentation from Radiology?

Comments:

// ( ,(

~ h ,~ , U U L AWL

Department: E.R. F.P. I.M. ONursing Pharmacy

k

OBIGYN Other:

Pos' on: d f Physician Medical Resident R.N. El Other Healthcare Associate

8138 A M .

&ology

• Radiology

Other Healthcare Provider

CI

Surgery

Medical Student

Signature: (optional)

DFJ00686

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

Document 277-3

Filed 12/01/2008

Page 183 of 191

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

EXHIBIT 33

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

38

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

Document 277-3

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13

VIDEOTAPED DEPOSITION

14

OF

15

JOSEPH MANSOUR, M.D.

16

Monday, August 25, 2008

17

Bakersfield, California

18 19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

MansourJ

Page 184 of 191 1

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

Document 277-3

Filed 12/01/2008

Page 185 of 191 10

1

09:04:18

1

A.

Correct.

2

09:04:18

2

Q.

Did you ever have any unpleasant

3

09:04:20

3 interactions with Dr. Jadwin?

4

09:04:22

4

A.

Personally, no.

5

09:04:23

5

Q.

Okay.

6

09:04:26

6

A.

I've heard he had interaction with other

7

09:04:31

7 people.

8

09:04:31

8

Q.

Okay.

9

09:04:34

9

A.

Correct.

10

09:04:34 10

Q.

Have you ever witnessed Dr. Jadwin acting

11

09:04:37 11 inappropriately?

12

09:04:38 12

A.

No.

13

09:04:39 13

Q.

Okay.

14

09:04:57 14 Dr. Jadwin's inappropriate interactions from others?

15

09:05:08 15

16

09:05:11 16 other physicians regarding some cases on some medical

17

09:05:16 17 issues, and that's basically all that I heard.

18

09:05:18 18

Q.

That's all you've heard?

19

09:05:20 19

A.

Uh-huh.

20

09:05:21 20

Q.

Okay.

21

09:05:23 21 inappropriate of Dr. Jadwin?

22

09:05:25 22

A.

Did I say inappropriate?

23

09:05:26 23

Q.

Yes.

24

09:05:28 24 inappropriate interactions.

25

09:05:30 25

A.

Well, what about not personally?

But you personally no, correct?

So what did you hear about

I've heard that he had some interaction with

But how -- why did you think it was

I was asking if you were aware of any

MR. WASSER:

I think you used the word

MansourJ

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

Document 277-3

Filed 12/01/2008

Page 186 of 191 98

1

11:05:43

1

A.

Yes.

2

11:05:44

2

Q.

Okay.

3

11:05:48

3 your conversation with Dr. Harris?

4

11:05:51

4

5

11:06:02

5 "Dr. Mansour became inappropriately angry and raised

6

11:06:07

6 his voice."

7

11:06:09

7

8

11:06:11

8 say that, that's in the middle of the first page

9

11:06:14

9 where it says, "Dr. Mansour became apparently angry

A.

Q.

Is this an accurate account of -- of

Somewhat.

The first paragraph it's stated,

I don't agree with that.

I just want to be very clear.

So when you

10

11:06:18 10 and raised his voice to me implying that it is

11

11:06:20 11 outrageous to suggest that he should not go to the

12

11:06:23 12 board with complaints"?

13

11:06:24 13

A.

Correct.

14

11:06:25 14

Q.

You don't agree with that?

15

11:06:26 15

A.

Right.

16

11:06:26 16

Q.

You don't agree with that?

17

11:06:28 17

A.

I don't agree with that.

18

11:06:29 18

Q.

Okay.

19

11:06:30 19 it says, "Dr. Mansour asked me if I was aware that

20

11:06:33 20 the county was paying malpractice coverage for

21

11:06:36 21 doctors to do cases at Memorial and at Mercy"?

22

11:06:39 22

A.

Correct, I did ask that.

23

11:06:40 23

Q.

Okay.

24

11:06:43 24 the county using taxpayer dollars to provide

25

11:06:46 25 malpractice coverage to OB-GYN doctors even though --

What about the next paragraph where

So this was -- this is a practice of

MansourJ

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

Document 277-3

Filed 12/01/2008

Page 187 of 191 99

1

11:06:51

1 even though they were doing work at other hospitals?

2

11:06:54

2

3

11:06:58

3 practice plan that I was complaining about, that the

4

11:07:00

4 county would provide malpractice coverage for

5

11:07:04

5 everything that's done outside Kern Medical Center

6

11:07:06

6 with the approval and blessing of Peter Bryan.

7

11:07:10

7

8

11:07:12

8 issue to Mr. Bryan?

9

11:07:13

9

A.

Yes.

10

11:07:17 10

Q.

Okay.

11

11:07:20 11 disagreed with your concern?

12

11:07:22 12

A.

Correct.

13

11:07:22 13

Q.

Okay.

14

11:07:25 14 Bryan about this?

15

11:07:27 15

A.

No more than once.

16

11:07:28 16

Q.

No more than once.

17

11:07:30 17 went to Mr. Bryan about this issue?

18

11:07:32 18

A.

No.

19

11:07:33 19

Q.

Okay.

20

11:07:42 20 Mr. Bryan and expressed this concern about the

21

11:07:44 21 malpractice insurance on or --

22

11:07:47 22

A.

I --

23

11:07:48 23

Q.

-- on or around the date of this letter?

24

11:07:50 24

A.

I do not recall specifically going to

25

11:07:53 25 Mr. Bryan regarding this issue only.

A.

Q.

Correct.

Okay.

And that was part of the faculty

And you -- you -- you explained this

And he said this is business plan. So he -- he basically discounted or

How many times did you go to Peter

Do you recall when you

Do you recall whether you met with

MansourJ

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

Document 277-3

Filed 12/01/2008

Page 188 of 191 100

1

11:07:55

1

Q.

Okay.

2

11:07:56

2

A.

It's regarding the whole faculty practice

3

11:08:01

3 plan, and that's probably one of the items on the

4

11:08:03

4 faculty plan.

5

11:08:05

5 issue.

6

11:08:06

6

7

11:08:11

7 raised this issue about malpractice insurance?

8

11:08:17

8

9

11:08:20

9 the business plan that made sense.

Q.

A.

Okay.

I don't recall going only for that

And was Mr. Bryan hostile when you

Q.

I can't remember.

10

11:08:22 10

11

11:08:25 11 Mr. Bryan, did you ever discuss this issue with

12

11:08:28 12 anybody else?

13

11:08:30 13 Dr. Harris, right?

14

11:08:31 14

15

11:08:35 15 was aware of this or not.

16

11:08:36 16

Q.

What did he say?

17

11:08:38 17

A.

He said he was.

18

11:08:42 18 aware and he agrees with it.

19

11:08:45 19

Q.

He agrees with you?

20

11:08:46 20

A.

He agrees with the plan.

21

11:08:47 21

Q.

Oh, he thinks the plan is fine?

22

11:08:49 22

A.

That's fine.

23

11:08:51 23 doesn't see, like he stated, why I don't take

24

11:08:56 24 advantage of that and do private practice at

25

11:08:59 25 Memorial.

A.

Okay.

All I remember is part of

And did you -- after you talked with

Obviously you discussed it with

I asked Mr. -- Dr. Harris, yeah, whether he

I remember he said he was

It's a business plan, and he

MansourJ

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

Q.

Document 277-3

Filed 12/01/2008

Page 189 of 191 101

1

11:08:59

1

So is this memo -- that discussion regarding

2

11:09:12

2 the malpractice coverage, is that -- do you see that

3

11:09:15

3 last paragraph on 27083, that last paragraph?

4

11:09:20

4

A.

Yeah.

5

11:09:20

5

Q.

Is that an accurate account of your

6

11:09:22

6 discussion with Dr. Harris?

7

11:09:28

7

A.

Correct.

8

11:09:28

8

Q.

It says -- you see there on 27084, the

9

11:09:38

9 second page, it's going to be about almost near the

10

11:09:41 10 end of that first big paragraph, it says, "I asked

11

11:09:44 11 Dr. Mansour why he would not also take advantage of

12

11:09:46 12 this and work in the community too"?

13

11:09:48 13

A.

Correct.

14

11:09:49 14

Q.

So he was suggesting why don't you go use

15

11:09:51 15 this malpractice coverage and work at other hospitals

16

11:09:54 16 and get free coverage, correct?

17

11:09:56 17

A.

Correct.

18

11:09:56 18

Q.

What did you -- how did you respond to that?

19

11:09:58 19

A.

I thought it was -- I don't know if I

20

11:10:01 20 responded or not, but I thought it was outrageous to

21

11:10:04 21 do that.

22

11:10:05 22

23

11:10:08 23

24

11:10:15 24 in the same paragraph, "Dr. Mansour said that it is a

25

11:10:18 25 business decision that the board wants to appeal."

Q.

So -I think so too. Okay.

Do you see that last sentence there

MansourJ

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

Q.

Document 277-3

Page 190 of 191 104

1

11:13:05

1

2

11:13:07

2 aware?

3

11:13:09

3

4

11:13:12

4 meetings, one of those open session with Peter Bryan,

5

11:13:16

5 that issue was raised.

6

11:13:17

6

7

11:13:20

7 with Peter Bryan?

8

11:13:21

8

9

11:13:23

9 supervisors.

A.

Okay.

Filed 12/01/2008

So how do you know that the board was

Q.

Because it was raised in one of their

A.

I'm sorry, what do you mean open session

I mean the regular session of the board of It was -- that issue was raised one

10

11:13:28 10 time with Peter Bryan.

11

11:13:29 11

12

11:13:33 12 knowledge, did the board actually approve the plan

13

11:13:36 13 still?

14

11:13:38 14

15

11:13:40 15 was can- -- the malpractice coverage, that's all

16

11:13:43 16 canceled.

17

11:13:44 17

Q.

Oh, it was canceled?

18

11:13:46 18

A.

Yeah.

19

11:13:46 19

Q.

So they fixed the problem?

20

11:13:48 20

A.

Yeah, it was canceled.

21

11:13:49 21

Q.

The board fixed the problem?

22

11:13:51 22

A.

Well, yeah, they canceled it before those

23

11:13:54 23 guys resigned, like in maybe to late -- early 2007 or

24

11:14:02 24 late 2006.

25

11:14:06 25 away.

Q.

A.

Oh, I see.

That's gone.

And did the board -- to your

That's disappear.

The plan

So that malpractice coverage was taken

MansourJ

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

Document 277-3

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

Page 191189 of 191

ss. 3 4

I, Sandra L. Edmonson, a Certified Shorthand

5

6

Reporter in the State of California,

7

No.

8

the witness named in the foregoing deposition, was by me

9

duly sworn;

7704,

do hereby certify that JOSEPH MANSOUR, M.D.,

that said deposition was taken Monday,

10

August 25,

11

first page hereof.

12

holding Certificate

2008,

at the time and place set forth on the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision;

16

transcript of the testimony given by the witness.

17

I

that the foregoing is a true and correct

further certify that I am neither counsel for

18

nor in any way related to any party to said action,

19

in any way interested in the result or outcome thereof.

20 21

Dated this 8th day of September,

2008,

at

Bakersfield, California.

22 23 Sandra L.

Edmonson,

24 25

WOOD & RANDALL (800) 322-4595

CSR No.

7704

nor

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

1 2 3 4 5 6

Document 277-4

Filed 12/01/2008

Page 1 of 209

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

DAVID F. JADWIN, D.O.,

12 13 14

Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

15

Defendants.

16 17

Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 I, Eugene D. Lee, declare as follows: 20 1.

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

21 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 22 counsel of record for Plaintiff David F. Jadwin in this matter. 23 2.

I am making this declaration in opposition to Defendants’ Motion for Summary

24 Judgment. I have personal knowledge of the matters set forth below and I could and would competently 25 testify thereto if called as a witness in this matter. 26 3.

Attached hereto as Exhibits are true and correct copies of the following documents:

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

1

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

Document 277-4

Filed 12/01/2008

Page 2 of 209

Exh. 1

Date 7/10/2006

Description Memo from Mr. Bryan to JCC re Recommendation of Demotion of Dr. Jadwin

2 3 4 5 6

8/14/2008 8/26/2008 1/9/2008 3/12/2008 10/21/2008

Deposition Transcript of Peter Bryan, Vol I Deposition Transcript of Peter Bryan, Vol II Deposition Transcript of David Jadwin, Vol II Deposition Transcript of David Jadwin, Vol V Deposition Transcript of David Jadwin, Vol VI

7

8/18/2008

Deposition Transcript of Former Supervisor Barbara Patrick, Vol I

8

4/16/2008

Deposition Transcript of Former Lab Mgr Gilbert Martinez

10

9

8/22/2008

Deposition Transcript of Former President Scott Ragland

11

10

8/25/2008

Deposition Transcript of Supervisor Ray Watson

11

8/21/2008

Deposition Transcript of Former CEO David Culberson

12

8/29/2008

Deposition Transcript of PMK Philip Dutt, Vol. I

13

8/28/2008

Deposition Transcript of Former COO Sandra Chester

17

14

9/4/2008

Deposition Transcript of PMK Eugene Kercher

18

15

6/29/2006

Letter from Lee to Barnes re Spoliation of Evidence

16

3/29/2007

Letter from Lee to Barnes re Spoliation of Evidence

17

11/20/2007 Defendants’ Responses to Plaintiff’s Request for Production, Set One

18

9/10/2007

1 2 3 4 5 6 7 8 9

12 13 14 15 16

19 20 21 22 23 24 25

19

Joint Conference Committee Meeting Minutes re Demotion of OB/GYN Chair Kern County Policy & Administrative Procedures Manual, Section 139 (Disciplinary Actions)

20

3/12/2002

21

12/26/2003 Change of Employee Status

26

CMO Marvin Kolb Memo to Jose Perez re Pathologist Elsa Ang Accusations

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

2

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

Document 277-4

Filed 12/01/2008

Page 3 of 209

22

5/15/2006

Expert Consulting Services Agreement, between Consultant William Colburn and Kern County

23

8/30/2006

Consultant William Colburn Report to Kern County re Review of Jadwin cases

24

8/13/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. I

5

25

8/27/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. II

6

26

5/3/2004

KMC FNA Consulting Project by UCLA Consultant David Lieu

27

8/18/2008

Deposition Transcript of Former President of Medical Staff Jennifer Abraham

1 2 3 4

7 8 9 10

28

Cancer Conference Presenter Guidelines

29

8/15/2008

12

30

10/19/2005 Exh. 202: Jadwin letter to Albert McBride, Cancer Conference Director re October Conference

13

31

11

Deposition Transcript of Former Cancer Committee Director Albert McBride

October Conference attendee feedback

14 32

11/9/2005

Oncology Conference attendee feedback of Savita Shertukde

33

8/25/2008

Deposition Transcript of OB-GYN Physician Joseph Mansour

34

Harris Memos to File re Mansour Behavior

35

5/10/2006 to 4/12/2007 8/19/2008

36

8/18/2008

Deposition Transcript of Chair of Surgery Maureen Martin, Vol. I

37

4/16/2008

Deposition Transcript of Histotech Evangeline Gallegos

38

4/19/2008

Deposition Transcript of Former CMO Marvin Kolb

25

39

2/26/2008

Deposition Transcript of Pathology Secretary Tracy Lindsey

26

40

2/26/2008

Deposition Transcript of Clerk Irene Lopez

15 16 17 18 19 20 21 22 23

Deposition Transcript of Nurse Executive Antoinette Smith, Vol. I

24

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

3

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

Document 277-4

Filed 12/01/2008

Page 4 of 209

41

12/6/2007

Deposition Transcript of Radiology Chair Javad Naderi

42

12/6/2007

Deposition Transcript of Cancer Committee Chair Ravi Patel

43

8/15/2008

Deposition Transcript of Former CEO Secretary Arlene Ramos-Aninion

5

44

12/5/2007

Deposition Transcript of Surgeon Edward Taylor

6

45

12/6/2007

Deposition Transcript of Neurosurgeon Charles Wrobel

46

8/21/2008

Deposition Transcript of Psychiatry Chair Tai Yoo

47

8/20/2008

Deposition Transcript of Acting Pathology Chair Philip Dutt

48

9/14/2006

Acting Pathology Chair Philip Dutt Email to Barnes re Plaintiff’s Paycut Amendment

12

49

10/17/05

Plaintiff email to Bryan re Serious Biopsy Errors

13

50

3/2/2006

Exh. 271: Plaintiff email to Bryan re Serious Biopsy Errors

51

4/21/2006

Emails between Plaintiff and Bryan re Serious Biopsy Errors

52

8/7/2008

Deposition Transcript of Pathologist Savita Shertukde

53

3/11/2008

Deposition Transcript of David Jadwin, Vol. IV

19

54

10/21/2003 Confidential Report on Lau Complaint against Jadwin

20

55

1/8/2008

Deposition Transcript of David Jadwin, Vol. I

56

9/9/2008

Deposition Transcript of PMK Acting Pathology Chair Philip Dutt, Vol. II

57

12/4/2007

Deposition Transcript of HR Director Steven O’Connor

58

10/10/2005 Amendment No. 1 to Employment Contract of Acting Pathology Chair Philip Dutt

59

11/1/2005

1 2 3 4

7 8 9 10 11

14 15 16 17 18

21 22 23 24 25 26

Employment Contract of Pathologist Savita Shertukde

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

4

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

60

6/19/2007 4.

Document 277-4

Filed 12/01/2008

Page 5 of 209

Employment Contract of Pathologist Gian Yakoub

Attached hereto as Exhibits 2-14, 24-25, 27, 29, 33, 35-47, 52-53 and 55-57 are true and

correct certified copies of deposition transcripts which I either personally conducted or attended. 5.

Attached hereto as Exhibits 15-16 are true and correct copies of letters which I authored

and faxed to Karen Barnes, Chief Deputy County Counsel for the County of Kern on the dates indicated. 6.

I have served four sets of written discovery on Defendants which included Document

Request No. 44. asking for “Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from Chair of Kern Medical Center’s Pathology Department to staff pathologist.” To date, Defendants have not produced any of the agendas for any JCC meetings including the meeting at which the JCC voted to approve Plaintiff’s demotion from chair. Defendants have engaged in a level of discovery obstruction that is more excessive than I have ever encountered in my 13 years practicing as an attorney, of which this is but the latest example. 7.

Attached hereto as Exhibits 17 is a true and correct copy of Defendants’ responses

received by me in response to Plaintiff’s Request for Production of Documents, Set One, propounded by me on behalf of Plaintiff.

16 17 18

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

19 20 21

Executed on: December 1, 2008

22 23

/s/ Eugene D. Lee

24

EUGENE D. LEE Declarant

25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

5

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

Document 277-4

Filed 12/01/2008

Page 6 of 209

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

EXHIBIT 34

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

39

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

Document 277-4

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CONFIDENTIAL: Trfe document was prepared in furtherance of the qualiy management and performance Improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible In a court of taw pursuant to California Evidence Code Section 1157. Further protections are afforded the quaKy management and performance improvement processes under the Health Care Quality Improvement Act of 1988 (P.L. 99660).

May 10,2006 Re: Joseph Mansour, MJ>. Err. Mansour came to talk to me today at 3:30 p.m. and we spoke for about 30 minutes. In retrospect, what he was really asking was why the department of OB-GYN was not being run by a committee of four with him being one and I being the fifth member as tie breaker. Feeling that he has little input into the running of the department, he plans to go to the Board and state that this structure had not been implemented. I told Dr. Mansour that he had mentioned this management structure to me about 3 months or so ago. I tried to validate such a proposed structure, but was unable to verify it with Peter Bryan or others. I told Dr. Mansour that his statement that he would go to the Board with such a complaint surprised me. I told him that it would be considered inappropriate for a member of the medical staff to go to a governing board for a hospital for such a matter, that governing boards set policy and strategic direction for an institution, and that such a matter of management is dealt with at an administrative level. Furthermore, when a medical staff member or employee has a concern, there are mechanisms for dealing with those concerns without having to go to the board. He said that he is a taxpayer. He said that if he has exhausted all other means of addressing his concerns, he should go to the board. I told him that maybe so, but that he has not come to me prior to this, so certainly he had not exhausted all other means. I still have not heard his specific complaint that he would present at such a management committee. Dr. Mansour became apparently angry and raised his voice to me, implying that h is outrageous to suggest that he should not go to the Board with complaints. He wanted me to put in writing that I said that it is inappropriate for a medical staff member to go to the board. I did not respond. If every time a medical staff member had an issue on his or her personal agenda and went to the Board, nothing would ever get accomplished. I asked him if he had complaints of improprieties that needed to be addressed at such a high level? I asked if there were noncompliant issues or issues of ethics? He looked at me strangely and said there were no issues of ethics. I said that if he needed to bring any improprieties to light, that we have a compliance officer who would deal with the issue, and that he would have no need to go to the Board. He said that he did have examples but that they were not of ethical issue. I asked him to please give me an example.

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Dr. Mansour asked me if I was aware that the County was paying the malpractice coverage for doctors to do cases at Memorial and at Mercy? I at first said no, as we have asked doctors to purchase private malpractice coverage for any private practice activity. I told Dr. Mansour, however, we want in the future to encourage doctors to work in the community, build relationships, enhance the image and services of our practice groups,

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and bring a more favorable payer mix to KMC. Then I remembered that we had already begun that transition plan starting with OB-GYN and that the Board had approved and sanctioned the malpractice coverage for those OB-GYN doctors for work in the community. Dr. Mansour implied that was a misuse of taxpayer dollars. I explained that it costs us no more money or no less money regardless of whether the doctor works outside of KMC. I do recognize that if a payout is made, then indeed it would cost the County some money, but we had decided that the potential benefits of such a practice design far outweigh the added risks. Dr. Mansour thought that it was wrong for the doctors to do this (obviously not unethical though, based on his previous discussion). I asked Dr. Mansour why he would not also take advantage of this and work in the community too? He said that he does do work at Memorial. I did not ask him if he felt it was so wrong that he purchases his own private malpractice. I told Dr. Mansour, that regardless of how he feels about it, the Board approved the plan. It was and still is nothing more than a business decision. Dr. Mansour said that h is a business decision that the Board wants to repeal. From the comments that Dr. Mansour was making it was obvious that he had an audience at the Board level. I asked Dr. Mansour if he had any further examples. None were forthcoming. Dr. Mansour did mention that he felt that the department secretary kept few minutes and was of little help to him. He felt that the department secretary was part of the "family affair" goings on in the department, clouded by secrecy and underhanded dealings. Dr. Mansour wanted to know why Dr. Perez's resignation was being kept so quiet. I told Dr. Mansour that with the recruitment and replacement of the Chairmanship of the Department of OB-GYN that his complaints will likely vanish under new leadership. He agreed but said that could take months. He said that when tried in the past, no one could be found that was willing to become the Chair of OB-GYN. We ended the meeting with me reiterating that I will set up a meeting with him to clarify whether the managing structure that Dr. Mansour had assumed was going to put into place was actually what was agreed upon. I thanked him for his input. Respectfully submitted,

Irwin Harris, M.D. Chief Medical Officer

0027084

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CONFIDENTIAL: This document was prepared In furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Code Section 1157. Further protections are afforded the quality management and performance improvement processes under the Health Care Quality Improvement Act of 1986 (P.L. 99660).

Re. Dr. Joseph Mansour as report by Dr. William Roy September 12,2006 Dr. Roy came to see me today, Tuesday, September 12, 2006 at 12:30 p.m. with Dr. Leonard Perez as witness to complain about abuses by Dr. Mansour. Dr. Mansour accused Dr. Roy of canceling a patient's surgery under the alleged pretense that Dr. Roy had a case at Memorial. In actuality, the patient required a bowel preparation which had not been done prior to the planned operation. Dr. Mansour was said to have been heard stating that Dr. Roy gave renal failure, when in actuality, the patient had had congenital kidney disorder and a stent had been replaced. The comment was made by Dr. Mansour in front of students and residents. It is said that Dr. Mansour often slaps the desk in front of him making for extreme emphasis of such criticisms. Dr. Roy said that if the event had been true, the case would have been in peer review. Rather, the comments made by Dr. Mansour were unprofessional, inappropriate, and of malicious intent.

Dr. Roy feels that he delivers care in prolonged hours and service to KMC and despite the additional effort and service, he is subjected to Dr. Mansour's ridicule and criticism. Unless the environment was to change, Dr. Roy states that he will leave. Respectfully submitted,

Irwm E. Harris, M.D. Chief Medical Officer

Plaintiffs Exhibit 740 Susan R. Wood, CSR # 6829 08/13/08 Irwin Everett Harris, M.D. /

0027094

£X.?4O

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CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Code Section 1157. Further protections are afforded the quality management and performance Improvement processes under the Health Care Quality Improvement Act of 1986 (P.L. 99660).

October 16,2006 Re: Dr. Joseph Mansour Dr. Mansour, in my opinion, was inappropriate at both the OB department meeting and the resident meeting that followed on Monday, October 16, 2006. Leonard Perez agreed. Dr. Mansour consumed a large part of the faculty meeting arguing that having the OB Chair candidates give a lecture on their return visit might alienate them and chase them away. He made an issue of lack of coordination for medical students rotating through OB, despite the fact that last week Hansa Patel volunteered to organize this matter. (Dr. Mansour did have a good suggestion however, that students be assigned clinic, OR, or L&D in alternating fashion rather than assigning them to teams. Rounding teams for the morning could still be assigned.) Dr. Mansour said that there are sufficient nursing issues in L&D that he could do a writeup every 5 minutes. Unfortunately, he made this statement in front of all of the residents. I did do an on the spot counseling of Dr. Mansour, by giving him a note of advice: Do not criticize the nursing staff in front of the residents. Respectfully submitted,

jU—« 7Lu^ Irwin Harris, M.D. Chief Medical Officer

Plaintiffs Exhibit 742 Susan R. Wood, CSR # 6829 08/13/08 Irwin Everett Harris, M.D. / 0027097

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CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Code Section 1157. Further protections are afforded the quality management and performance improvement processes under the Health Care Quality Improvement Act of 1986 (P.L. 9 9 660).

Re: Phil Dutt, M.D. February 6, 2007

Plaintiffs Exhibit 745 (2 pgs.) Susan R. Wood, CSR # 6829 08/13/08 Irwin Everett Harris, M.D.

Counseling and Considerations Concerning his Role as Acting Chair On February 6, 2007,1 phoned Dr. Dutt after a meeting with Karen Barnes (on the phone), David Culberson, and Steve O'Connor, where Dr. Dutt lost his temper on a couple of occasions while trying to advance a suggestion that recent events could possibly be leveraged for dealing with a problem supervisor and the potential litigation by Dr. Jadwin. Dr. Dutt remarked that he has lost his temper on rare occasion. I mentioned to Dr. Dutt that over the past several months, many have noticed periods when he has manifested signs of stress. I expressed my concerns for his well being and suggested several approaches that he consider: Environmentally, he 1. Needs more staff to do the daily load of cutting in specimens and reading slides through hiring or locums. 2. Be relieved of exclusive burden to oversee the work of Dr. Sherdetuke. 3. Hire the PA to help with cutting in of specimens

Personally, he 1. May need to find means to mitigate stress. 2. Needs a vacation (has not taken one since May) 3. Find a way to compensate Dr. Dutt for Chair duties. 4. Further counseling to decrease the compulsiveness and unbalanced approach with which he is consumed and subsumed with the Dr. Jadwin issues and internal politics within the pathology department and lab. From his perception it is him, Tracy, and one other? Gilbert against all the others. In essence, Dr. Dutt is doing at least three jobs: full time clinical pathologist, overseer and assumption of responsibility for all of the quality of the product being produced, and legal consultant to deal with the previous chair. He cannot do all three jobs and have a manageable life. I did not discuss with him, but I feel that for now, I would keep Dr. Dutt in the acting Chair position and try to pay him for the administrative services that he provides. He appears to not have embraced the broad support of the pathology department and lab and has on previous occasion prompted complaints from other medical staff members within

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his department. For these two reasons, I believe he should remain acting Chair until he can demonstrate those administrative demeanors desired of a Chair under conditions of lower environmental stress. Respectfully submitted,

Irwin Harris, M.D. Chief Medical Officer

0027101

2-

t

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CONFIDENTIAL: This document was prepared In furtherance of the quality management and performance Improvement activities of Kem Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Code Section 1157. Further protections are afforded the quality management and performance Improvement processes under the Health Care Quality Improvement Act of 1966 (P.L. 9 9 660).

March 12,2007 Re: Dr. Joseph Mansour

On Monday late afternoon, Joseph Mansour asked to meet with me as he had some additional information to share with me regarding ACOG recommendations about the role of the obstetrician in neonatal resuscitatioa I told him that I would go upstairs to his office and meet him there. Earlier in the morning, I had presented what is considered the national standard regarding a Neonatal Resuscitation Team and to have the OB department endorse the current policy and use of such a team. Dr. Mansour could hardly keep quiet when I tried to ask the other members of the department for their opinion first. Dr. Mansour then demanded to explain the circumstances that he believed prompted this inquiry. I advised him not to share that information in a common forum as the case is scheduled to be peer reviewed. Upon entering his office, Dr. Mansour asked if Dr. Lopez could join us and I agreed. Dr. Mansour initially showed me the three entries in the ACOG guidelines that referred to the topic of neonatal resuscitation and I listened intently. Things deteriorated from there. Dr. Mansour obviously was out to get my goat and he certainly did. First he began to rant and rave about something. In all honesty, I do not recall what he said. He made me very uncomfortable, as he had raised his voice and was excited. He said that he did this just to make a point. I asked him if he wanted some feedback from me as a listener, and how he made me feel. He nodded yes. I told him that he made me feel uncomfortable, somewhat uneasy, threatened, and that the anxiety I was feeling made me not be able to listen to him very well. He proceeded to ask me how his case got into peer review so quickly. I told him the speed was not important. What I did not tell him was that his actions were perceived to be so egregious to the NRP Team and the medical staff officers, that Dr.'s Ragland and Jose Perez were at one point considering suspension, if for no other reason than for "possible assault" on the respiratory therapist. I told him that when the medical staff officers feel that a case deserves peer review it goes to peer review. Dr. Mansour said that he has not had a chance to give his side of the story. I told him, of course not, that peer review will allow for his side of the story to be told as part of the process. He thought that if he could tell his side of the story the case would not need to be sent to peer review at all. I told him that peer review is done regardless and that many peer reviews find current acceptable practice fulfilled.

Plaintiffs Exhibit 746 (3 pgs.) Susan R. Wood, CSR # 6829 08/13/08 Irwin Everett Harris, M.D. 0027102

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Dr. Mansour proceeded then to ask me what side I was on. I looked at him puzzled as if picking a side was the only position someone could take. I told him that I do not pick sides, but if a line were drawn, I would fall on that side of the line that would have skepticism as to his behavior. He became more agitated with me and said see, you are on the side of those who conspire to get me. He went into a long over-reactive tirade that all along he had been suspicious that I was not on his side and I now admitted that to be true. I told him that I was giving him an honest answer but that I do not pick sides. I told him that I wished that I had not been so honest with him as obviously he has exaggerated my answer and immediately concluded that I am out to get him and in support of Leonard Perez. All I had said was that if a line had to be drawn, I would fall on the opposite side of unquestionable support for him as I remain skeptical of his ability to communicate constructively and to engender the support of others with whom he works. Dr. Mansour went on to say in his office, how proud he was that he had brought down the CEO, that for 10 years the other group has taken advantage of the county, that he was in the right, that he has been awarded the best teacher award for good reason, that I should speak with the residents to learn what a great obstetrician he is, how Leonard and his group are manipulative, that I have been duped into believing the Peter Bryan philosophy, that I confirmed his suspicion that I am against him, and that he plans to contact his attorney because as a CMOI am not neutral. I had grown somewhat annoyed with Dr. Mansour; he refused to shake my outstretched hand, and I went out into the hall disgusted. Sensing that neither of us wanted to part in such unpleasant state, I asked him if he wanted to go back into his office and talk. He said yes. When we returned to his office, he tried to make me commit, in front of Dr. Lopez, that I was against him, on the opposite side of the fence, that I had raised my voice, that I was frustrated with the conversation because of my guilt in not being impartial, and other psychological analysis of me. I asked Dr. Mansour what he had hoped would be a desirable result of our further conversation. He never really answered that question. From this point forward, I was largely quiet, except to point out to Dr. Mansour that it is he who has a problem that only he can solve. He asked me what I meant. I asked him to try to identify for me what that problem might be so that I could see how much insight he has. He said that his problem was Leonard and his group. I said that from my point of view it is a different problem. Dr. Mansour seemed unaware. I explained to him that he has a problem with the institution, his nursing staff, and many of his patients who have complained. He seemed surprised to learn of this. He said it is not true, Ifthereisany such instance, it is precipitated by Leonard and his group. He asked me to produce the evidence. I told him that I had intended to bring some examples up to his office as it is my responsibility to counsel him on such matters. In retrospect, it was fortunate for me that I had not confronted Dr. Mansour with these complaints considering how upset he became with me even without such provocation.

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I reiterated that because of his communication style, he has not contributed to a communicative, helpful, collegial, and effective environment at the hospital. We apparently departed company in peace. He said that our conversation will remain only between us, but within 10 minutes he phoned David Culberson to discuss his concerns. I remain frustrated by his provocative demeanor, his apparent need to be the boss, his apparent need to be in control, his apparent need to feel superior to me as Chief Medical Officer, to intimidate me by his threat of contacting his attorney, and his apparent need to reassure me that he would not use his power to retaliate against me. He further patronized me by stating that he feels sorry for me since I have been swayed by being under the influence of Peter Bryan and was biased by Leonard Perez, and that he recognizes that this negative bias toward him is not my fault. I am left with feelings of having been manipulated, not respected for my position or knowledge as Chief Medical Officer, and that he would only be appeased by my submission. He is insistent that he is right. I felt pressured to offer him my allegiance. I have only gotten my blood pressure up once or twice since I began at KMC and I teach residents and medical staff to never get angry. Frankly, Dr. Mansour twisted the issues and statements in such a convoluted manner to his liking and at such a fast paced pressured manner, that it became truly exasperating. I wonder if consciously or subconsciously, Dr. Mansour classifies each person as with him or against him as a pre-emptive defensive maneuver to neuter those who may potentially criticize him or discipline him in the future, so that all he has to do is claim unfair treatment if he is called on his actions. As a result, he can never be legitimately criticized, because anyone who would criticize him would have to be out to get him. Respectfully submitted,

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Irwin Harris, M.D. Chief Medical Officer

0027104

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CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kem Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to California Evidence Code Section 1157. Further protections are afforded the quality management and performance improvement processes under the Health Care Quality Improvement Act of 1986 ( P . L 99660).

April 12,2007 Re: J. Mansour, M.D. The purpose of this report is to document discussion with Joseph Mansour, M.D. held with Mr. Culberson at 9:20 am for about 45 minutes on Thursday, morning, April 12, 2007. Two days prior, Mr. Culberson and I decided that we would present the 5 occurrence reports of quality concerns and one patient complaint to Dr. Mansour and allow him to have time to think about his response before we met with him to discuss our expectations for improved working relationships between him, patients, and the nursing staff. We typed an accompanying letter and made copies of the six complaints which we had intended to deliver to Dr. Mansour on Wednesday late afternoon before meeting with him to discuss the matters on Thursday at 5 p.m. The delivery was postponed until Thursday morning, when Mr. Culberson had time to present them to him in person. Dr. Mansour could not wait and insisted on receiving the letter first thing Thursday morning. Dr. Mansour then insisted on meeting with Mr. Culberson immediately thereafter and by so doing demanded immediate audience. I was asked to join in the discussion at about 9:20 am. I made notes of the comments made by Dr. Mansour. He said, "that others are out to get him. Why else would there be a flurry of complaints recently against him? All of the complaints are of malignant intent. No doctor is more caring than he. In 30 years he has never been sued. Roughness in case 1 is only in the eye of the beholder. It was the nurse who refused my order to set up for delivery. The nurse medicated the patient before delivery against my advice. It is not whether I am a compassionate or a noncompassionate doctor, rather is a lazy nurse who does not wish to do her job. In case 2, it was Michelle, the nurse, who stopped pitocin on her own for mild deceleration without my order. Mansour ordered her to restart the pitocin and she refused to follow Mansour orders. If a woman is 9 cm as was case 3, of course she should have VBAC instead of Csection. It is not true in case 4 that I threw instruments. In case 5 the patient had to push for a while, so what is the big deal? The patient never complained to me. Obviously this occurrence report is of malicious intent." I tried to change the tone of the meeting away from a defense of cases, to a more constructive outcome. I asked Dr. Mansour what he could do differently to improve the working relationships as a team and to improve quality of patient care. He stated that he could respond to each allegation more in writing. I reiterated the question, what can you do to help the situation. He replied, "nothing. I do not need to change. My behavior has not changed from before, so why now should I have to change. Why is there a flurry of activity now? I resent the fact that Dr. Harris believes the other side." Mr. Culberson

Plaintiffs Exhibit 747 (2 pgs.) Susan R. Wood, CSR # 6829 08/13/08 Irwin Everett Harris, M.D. 0027105

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stepped up and said that is not true, that both he and Dr. Harris are neutral. Dr. Mansour then said, " let me meet with the nurses and let us clear this up." Dr. Mansour went on to complain about Elaine. He stated, "you need to think about this: why is only Mansour targeted? I have been here for 30 years? Perez is well connected to the nurses. Cindy Delgado and the other nurses are well connected. Sandy Rebeski is on top of all this. There is evil spirit at play. All of this is a remnant of Peter Bryan. It was Mansour who got rid of Peter Bryan. The County has a different opinion about these matters. I will apply for the Chairmanship. I am the only person who can run this department. Now, because of these complaints against me, I will be turned down for the position of chair. My attorney will be able to use this information. Compassionate -1 am. Caring - 1 am. Why are there no complaints from the clinic nurses? It is because Perez is not there manipulating them. All of this is retaliation." I suggested that perhaps Dr. Mansour could present a few ideas of how he can be part of the solution instead of just identifying the problems. He said that he does not feel he has to do this. So, I asked what have we concluded from this meeting? Dr. Mansour said that he concludes that he must now respond in writing and in detail to each of the issues. I told him that I would get him the medical record of the patient complaint and we adjourned. Respectfully submitted,

Invin E. Harris, M.D. Chief Medical Officer

0027106

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CONFIDENTIAL: This document was prepared in furtherance of the quality management and performance improvement activities of Kern Medical Center. Such activities are privileged and confidential and are not discoverable or admissible in a court of law pursuant to CaEfornia Evidence Code Section 1157. Further protections are afforded the quality management and performance improvement processes under the Hearth Care Quality Improvement Act of 1986 (P.L. 99660).

April 12, 2007 Re: J. Mansour, M.D. I was asked by David Culberson, who was unfortunately unable to be in attendance, to investigate from those present in the room with Dr. Mansour regarding the alleged "throwing of instruments" during the Cesarean-Hysterectomy. On Thursday afternoon, April 12, 20071 met with Dr. Fahmy first who explained that the pressures were large, the patient had lost much blood and was continuing to bleed, 9 units of blood had been transiused, Dr. Mansour had tried to clamp to stop the bleeding with the wrong instrument and caused more tissue damage without accomplishing hemostasis, the nurses were unable to find the appropriate instruments, and Dr. Fahmy was surprised that Dr. Mansour was being scrutinized, when in reality it was the nursing staff that should be called to task for not having the appropriate instruments available. When I asked Dr. Fahmy how Dr. Mansour reacted, especially with regard to how he passed the instruments in his frustration, she stated that he put the wrong instrument down on the table forcibly like pounding the table, but did not 'throw' the instrument. I then interviewed Ms. Ramirez, who was the circulator in the room. Her response was that she and the scrub tech were trying as best they could, and that "no one deserved to be treated in such a verbally rude manner and to have the instruments be 'flung' at the scrub tech, no matter how gently or forcibly, as the person can be injured." Although Dr. Mansour did not throw, toss, or propel the instrument with force, he did release the instrument such that it passed through the air a short distance before landing on the instrument table stand. I later interviewed Dr. Kalifa with Mr. Culberson, and although the resident was trying to be helpful, he either did not recall the event or came into the room after the event had occurred. The resident stated that he has seen others toss instruments and I used the opportunity to emphasize to him, to never, ever, toss instruments. They are either to be placed into a tray by the surgeon or handed, non sharp end first and outward, toward the scrub until the scrub takes hold of the instrument from the surgeon's hand. On rare and unusual circumstances, a surgeon may gently place an instrument down, him or herself, on the stand. Respectfully submitted,

Irwin E. Harris, M.D. Chief Medical Officer

Plaintiff s Exhibit 749

Susan R. Wood, CSR # 6829 08/13/08 Irwin Everett Harris, M.D. 0027109

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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

EXHIBIT 35

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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______________

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F. JADWIN, D.O.,

) VOLUME I ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

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OF

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ANTOINETTE CATHERINE SMITH

17

Tuesday, August 19, 2008

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Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

SmithT1

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MR. LEE:

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1

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2 I'll look into that later.

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3 BY MR. LEE:

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4

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5 this removal of Dr. Jadwin at the removal meeting?

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7 removal.

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9 couple of abstentions.

Q.

A.

Q.

Okay.

That's a good point.

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You know,

And do you recall how you voted on

To my best recollection, I voted for his

And do you recall -- I believe there was a

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09:18:29 10

Do you recall who abstained on the vote?

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09:18:34 11

A.

I believe Dr. Ragland abstained.

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09:18:39 12

Q.

Okay.

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09:18:40 13

A.

But I do not remember anyone else.

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Q.

Do you believe David Hill might have

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09:18:46 15 abstained?

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09:18:49 16

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09:18:55 17 member -- was not.

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09:18:58 18

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09:19:00 19 abstained from the vote?

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09:19:02 20

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09:19:04 21 before or after.

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09:19:11 23 Dr. Jadwin from chair?

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09:19:14 24

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09:19:18 25 because of his absence from the premises.

A.

Q.

A.

Q.

A.

He was the director of ambulatory care.

David Hill didn't -- is not a voting

Any idea why Dr. Ragland might have

I have -- I had no conversation with him

Okay.

And why did you vote to remove

My rationale for removing him from chair was

SmithT1

He had not

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1

09:19:25

1 been present for quite some time, as I recall.

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09:19:28

2 can't tell you the amount of time.

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09:19:32

3 know, those positions are extremely important, and we

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09:19:36

4 need to have a chair who is present to do the work of

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09:19:42

5 the department.

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09:19:42

6

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09:19:46

7 physical absence and physical presence.

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09:19:47

8

A.

Correct.

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09:19:49

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Q.

Okay.

Q.

I

And as you might

When you say absence and presence, you mean Correct?

And were you aware of why Dr. Jadwin

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09:19:52 10 was physically absent from Kern Medical Center for a

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09:19:54 11 large part of 2006?

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09:19:59 12

13

09:20:04 13 that it was -- actually, I have no idea.

14

09:20:12 14

Q.

No idea?

15

09:20:14 15

A.

No idea.

16

09:20:16 16 unavailability.

17

09:20:19 17

18

09:20:21 18

19

09:20:29 19 who brought this -- this agenda item to the JCC of

20

09:20:32 20 Dr. Jadwin's removal?

21

09:20:36 21

22

09:20:38 22 Mr. Bryan.

23

09:20:39 23

24

09:20:40 24

25

09:20:47 25 explanation given as to why physical presence of a

A.

Q.

I have no idea.

It was basically due to his

Due to his unavailability. And -- okay.

A.

Q.

I believe there was mention

Did Dr. -- well, who was --

Do you recall?

To the best of my recollection, it was

Mr. Bryan. And do you recall why -- was there any

SmithT1

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

Q.

Document 277-4

Filed 12/01/2008

Page 23 of 209 82

1

10:50:32

1

2

10:50:36

2 authorities ever reviewed the PCC issue?

3

10:50:40

3

4

10:50:43

4 review our entire blood administration process.

5

10:50:47

5

Q.

Okay.

6

10:50:50

6

A.

Joint commission, CAP, and CMS.

7

10:50:59

7

Q.

I'm sorry.

8

10:51:06

8

A.

Shoot.

9

10:51:08

9

Q.

California Medical Society or --

A.

Do you recall whether any regulatory

We've had multiple regulatory agencies

Can you name those agencies?

What's CMS?

What the heck does it stand for?

10

10:51:10 10

MR. WASSER:

11

10:51:12 11

THE WITNESS:

12

10:51:14 12 government --

13

10:51:15 13

MR. WASSER:

Social Security.

14

10:51:16 14

MS. BARNES:

It's the Centers for Medicare

15

10:51:18 15 and Medicaid Services, formerly HCFA, Healthcare

16

11:23:53 16 Financing Administration.

17

10:51:25 17

THE WITNESS:

18

10:51:25 18

MR. LEE:

19

10:51:26 19 answer.

20

10:51:26 20

21

10:51:28 21 BY MR. LEE:

22

10:51:28 22

23

No.

It's a welfare -It's a federal

Thank you.

Thank you.

THE WITNESS:

Q.

No.

That's a very good

It's the federal government.

Do you recall if Dr. Jadwin -- let me back

23 up.

24

10:51:34 24

Do you recall if the Department of Health

25

10:51:36 25 Services ever looked at the PCC or blood issue --

SmithT1

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

Document 277-4

Filed 12/01/2008

Page 24 of 209 83

1

10:51:39

1 blood administration issue?

2

10:51:40

2

3

10:51:42

3

MR. WASSER:

4

10:51:44

4

THE WITNESS:

5

10:51:47

5 BY MR. LEE:

6

10:51:49

6

7

10:51:56

7 you happen to learn what the findings were or the

8

10:51:58

8 reports were of these multiple regulatory agencies

9

10:52:02

9 looking at the blood administration?

A.

Q.

That would be Title 22. DHS. DHS.

I don't recall.

A.

And what do you recall -- were you -- did

10

10:52:05 10

Well, the way -- the way we usually have

11

10:52:07 11 reports from these agencies are if there are -- if

12

10:52:10 12 they review something and there's a deficiency, then

13

10:52:13 13 they write it as a deficiency.

14

10:52:15 14

Q.

Okay.

15

10:52:17 15

A.

And, I mean, I -- our latest survey of

16

10:52:24 16 CMS -- I know for a fact because I remember very

17

10:52:28 17 clearly that we had no deficiencies in nursing,

18

10:52:32 18 period.

19

10:52:35 19 blood.

20

10:52:39 20

Q.

What about -- I'm sorry.

21

10:52:41 21

A.

I was going to say, I don't believe joint

22

10:52:43 22 commission found any.

23

10:52:46 23 reports.

24

10:52:52 24

Q.

The same thing with CAP?

25

10:52:56 25

A.

The same thing with CAP.

So they did not find any fault with the Joint -Go ahead.

I would have to refer to those

SmithT1

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

Document 277-4

Filed 12/01/2008

Page 25 of 209 85

1

10:54:03

1 jeopardy --

2

10:54:04

2

Q.

Okay.

3

10:54:04

3

A.

-- which in their mind places the safety of

4

10:54:09

4 patients or staff in immediate harm.

5

10:54:14

5

6

10:54:18

6 agencies determined that there was jeopardy?

7

10:54:21

7

A.

Correct.

8

10:54:25

8

Q.

Nevertheless, a deficiency is never a good

9

10:54:28

9 thing to hear about -- right? -- from a regulatory --

Q.

A.

So, in other words, none of the regulatory

10

10:54:32 10

11

10:54:33 11 patients to have perfect care.

12

10:54:40 12

13

10:54:40 13

14

10:54:47 14 PCCs that were incomplete or incorrectly filled out.

15

10:54:51 15

16

10:54:54 16 audits were picking up the same types of errors in

17

10:54:59 17 the original PCCs?

18

10:55:01 18

19

10:55:05 19 less than 100 percent compliance.

20

10:55:12 20 looking at the same things, I have no idea.

21

10:55:20 21

22

10:55:25 22 of Dr. Jadwin's concerns about incomplete or

23

10:55:27 23 inaccurately -- inaccurately filled original PCCs, to

24

10:55:34 24 your knowledge?

25

10:55:34 25

Q.

Oh, we want to be perfect and we want our That's a goal.

Right. Now, Dr. Jadwin was finding some original

Were you aware of whether Ms. Hevle in her

A.

Q.

A.

Well, Ms. Hevle's audits certainly reflected

Okay.

Whether they were

But there was some corroboration then

Well, I wouldn't call it corroboration

SmithT1

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

Document 277-4

Filed 12/01/2008

Page 26 of 209 87

1

10:56:33

1 you familiar with statistical sampling error?

2

10:56:35

2

A.

Yes.

3

10:56:36

3

Q.

The size of the sample will determine the

4

10:56:38

4 accuracy or trustworthiness of the average you

5

10:56:42

5 derive?

6

10:56:43

6

7

10:56:45

7 applies here.

8

10:56:46

8

9

10:56:48

9 other?

A.

Q.

A.

I'm familiar with that.

Okay.

I'm not sure it

But you don't know one way or the

10

10:56:48 10

11

10:56:50 11 that Ms. Hevle's samples were statistically -- that

12

10:56:57 12 she abided by joint commission regulations on how

13

10:57:00 13 many samples.

14

10:57:02 14

15

10:57:05 15 to yield a pretty accurate finding?

16

10:57:09 16

A.

We believe so.

17

10:57:10 17

Q.

Okay.

18

10:57:17 18 let's say you find one percent or two percent

19

10:57:21 19 incomplete or inaccurate PCCs being filled out.

20

10:57:25 20 That's still a problem regardless, isn't it?

21

10:57:27 21 wouldn't want to sit there and say oh, that's fine.

22

10:57:29 22 There's no problem here.

23

10:57:29 23

24

10:57:36 24

25

10:57:37 25 the record just briefly for a rest room break?

Q.

A.

I don't know one way or the other.

I know

So probably her sample size was large enough

Okay.

But regardless, finding --

You

I would never say that was okay. MR. LEE:

Okay.

Would you mind going off

SmithT1

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

Document 277-4

Filed 12/01/2008

101 Page 27 of 209

STATE OF CALIFORNIA ss.

2

COUNTY OF KERN

3 4 5

I,

Susan R. Wood,

a Certified Shorthand

6

Reporter in the State of California, holding

7

Certificate No.

8

ANTOINETTE CATHERINE SMITH, the witness named in the

9

foregoing deposition, was by me duly sworn; that said

10

deposition was taken Tuesday, August 19, 2008, at the

11

time and place set forth on the first page hereof.

12

6829,

do hereby certify that

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotypy and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I

further certify that I

am neither counsel for

18

nor in any way related to any party to said action, nor

19

in any way interested in the result or outcome thereof.

20 21

Dated this 2nd day of September,

24

at

Bakersfield, California.

22 23

2008,

S us a n

~-N-O-'--=6-=8-=2'--9=-----

25

WOOD & RANDALL (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 28 of 209

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

EXHIBIT 36

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

41

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) VOLUME I ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

MAUREEN FRANCES MARTIN, M.D.

17

Monday, August 18, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

MartinM1

Page 29 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 30 of 209 34

1

09:40:23

1 lot of his presence was either fabricated or not --

2

09:40:33

2 I mean, what he presented himself as and what he, in

3

09:40:36

3 fact, was were very different.

4

09:40:40

4 big disappointment to me over time to realize that,

5

09:40:46

5 you know, aside from the inappropriateness that there

6

09:40:50

6 wasn't a lot of substance and value to his role as

7

09:40:55

7 a pathologist.

8

09:41:02

8

9

09:41:04

9 the street, how would you greet him?

Q.

And it was quite a

Would you -- if you saw Dr. Jadwin today on

10

09:41:06 10

A.

I would say hello.

11

09:41:07 11

Q.

Okay.

12

09:41:09 12

A.

I would.

13

09:41:10 13

Q.

Okay.

14

09:41:14 14 feelings of resentment or anger or disappointment

15

09:41:17 15 with Dr. Jadwin?

16

09:41:18 16

17

09:41:20 17 disappointment.

18

09:41:21 18

19

09:41:24 19

20

09:41:26 20 turn the other way and just pretend like you didn't

21

09:41:29 21 see him?

22

09:41:30 22

A.

No.

23

09:41:30 23

Q.

You wouldn't do that.

24

09:41:31 24

25

09:41:34 25

A.

Q.

Would you be friendly with him?

So do you have any kind of lingering

If any, of all those words I would say

Um-hmm.

Um-hmm.

But if you did see Dr. Jadwin, would you

Do you like Dr. Jadwin? A.

I do.

MartinM1

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

Document 277-4

Filed 12/01/2008

Page 31 of 209 35

1

09:41:35

1

Q.

Okay.

Even today you like Dr. Jadwin?

2

09:41:37

2

A.

I do.

3

09:41:38

3

Q.

Okay.

4

09:41:44

4 just speculative, but I'm going to ask it.

5

09:41:47

5 Dr. Jadwin called you up and said, hey, can we meet

6

09:41:49

6 for a meal, I'm in Bakersfield, would you do it?

7

09:41:51

7

A.

Probably not.

8

09:41:52

8

Q.

And why is that?

9

09:41:52

9

A.

I really don't feel that I have a lot in

If Dr. Jadwin wanted to -- you know, If

10

09:41:58 10 common with him.

11

09:42:04 11 the department of surgery in a difficult situation

12

09:42:09 12 vis-a-vis pathology.

13

09:42:13 13 very important to me, and I would not go out of my

14

09:42:18 14 way to spend additional time with David Jadwin.

15

09:42:21 15

16

09:42:32 16 clarify a few statements.

17

09:42:34 17

18

09:42:35 18 left the department of surgery in a difficult

19

09:42:38 19 position vis-a-vis pathology.

20

09:42:40 20

21

09:42:41 21

22

09:42:43 22 department -- the department was without a leader for

23

09:42:46 23 a long time.

24

09:42:47 24

Q.

You are talking about pathology.

25

09:42:49 25

A.

Yes.

Q.

Okay.

I think his presence at KMC left

Okay.

So, quite frankly, my time is

Besides -- first of all, let's

Now, you said the department -- Dr. Jadwin

What does that mean? A.

Well, he was absent for a long time.

MartinM1

The

Right?

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

A.

Document 277-4

Filed 12/01/2008

Page 32 of 209 91

1

12:08:11

1

2

12:08:16

2 was a professional interaction regarding a pathology

3

12:08:20

3 report --

4

12:08:20

4

Q.

I see.

5

12:08:21

5

A.

-- that I would ask to either be reviewed,

6

12:08:24

6 sent out, or revisited.

7

12:08:29

7

8

12:08:31

8

9

12:08:33

9 respect to sending pathology reports out at your

Q.

In that setting it was not counseling; it

Oh, I see. So Dr. Jadwin's conduct did improve with

10

12:08:36 10 request?

11

12:08:36 11

12

12:08:39 12 appropriate interaction with him regarding the case

13

12:08:41 13 at hand.

14

12:08:42 14

15

12:08:42 15

16

12:08:45 16 did he show any kind of improvement, other than that,

17

12:08:47 17 in your interactions with him?

18

12:08:52 18

19

12:08:54 19 with him.

20

12:08:54 20

21

12:08:54 21

22

12:09:02 22 the need -- because Dr. Jadwin was responding to your

23

12:09:05 23 meetings with him, you didn't feel the need to report

24

12:09:07 24 him to administration as a patient care issue?

25

12:09:11 25

A.

Q.

Well, at my request.

I usually had a very

I see. Did Dr. Jadwin's conduct or interactions --

A.

Q.

Quite frankly, I never had a bad interaction

I see. Okay.

A.

So these -- so you didn't feel ever

That's correct.

MartinM1

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

STATE OF CALIFORNIA

2

COUNTY OF KERN

Document 277-4

Page 102 33 of 209

Filed 12/01/2008

ss. 3 4

5

I,

Susan R. Wood,

a Certified Shorthand

6

Reporter in the State of California,

7

Certificate No.

8

MAUREEN FRANCES MARTIN, M.D.,

9

foregoing deposition, was by me duly sworn; that said

6829,

holding

do hereby certify that the witness named in the

10

deposition was taken Monday, August 18,

11

time and place set forth on the first page hereof.

12

2008,

at the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotypy and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I

further certify that I am neither counsel for

18

nor in any way related to any party to said action, nor

19

in any way interested in the result or outcome thereof.

20 21

Dated this 2nd day of September,

24

at

Bakersfield, California.

22 23

2008,

Su s

a~g-R-N-O-.--=-6-=-8-=-2-=9----

25

WOOD & RANDALL (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 34 of 209

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

EXHIBIT 37

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

42

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

EVANGELINE F. GALLEGOS

17

Wednesday, April 16, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

GallegosE

Page 35 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 36 of 209 23

1

13:30:34

1

A.

Or manage their time more effectively.

2

13:30:38

2

Q.

Okay.

3

13:30:41

3 directed at you somehow?

4

13:30:45

4

5

13:30:47

5 to me.

6

13:30:49

6

Q.

It was everybody?

7

13:30:50

7

A.

Yeah.

8

13:30:56

8

Q.

Okay.

9

13:30:59

9 add to this issue about him putting more work on your

A.

No.

And you felt that comment was

I think he -- it wasn't just directed

It was everybody.

Is there anything else you want to

10

13:31:03 10 shoulders when you were already busy?

11

13:31:06 11

A.

No.

12

13:31:07 12

Q.

That's it.

13

13:31:08 13

14

13:31:10 14 personality or his style of management.

15

13:31:14 15 him to be -- did you find Dr. Jadwin to be arrogant?

16

13:31:19 16

A.

Yes.

17

13:31:20 17

Q.

Okay.

18

13:31:23 18 detail?

How was he arrogant?

19

13:31:30 19

He's approachable, but I guess maybe -- I

20

13:31:39 20 don't mean to be judgmental, but sometimes he would

21

13:31:43 21 say things that were kind of arrogant.

22

13:31:46 22 recall.

23

13:31:55 23 very kind and generous man, but in the workplace he's

24

13:31:58 24 just different.

25

13:32:01 25 work with people.

That's it.

Okay.

A.

Well, let's talk about his Did you find

Can you describe that in any more

I can't

But, I mean, he's -- outside of work he's a

You know, it's different when you

GallegosE

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

Document 277-4

Filed 12/01/2008

Page 37 of 209 24

1

13:32:05

1

Q.

Perhaps a little demanding, then?

2

13:32:07

2

A.

Yes.

3

13:32:11

3 wants them his way.

4

13:32:16

4

5

13:32:19

5 then, Dr. Jadwin was arrogant?

6

13:32:25

6

A.

Yes.

7

13:32:26

7

Q.

Okay.

8

13:32:33

8 opinion?

9

13:32:34

9

A.

What do you mean by disagreeable?

10

13:32:37 10

Q.

That's a good question.

11

13:32:47 11 your attorney, but that's a little hard.

12

13:32:49 12 know.

13

13:32:55 13 give you my understanding of the dictionary meaning

14

13:32:59 14 of that word, but perhaps unpleasant.

15

13:33:02 15

16

13:33:05 16 in the sense of being unpleasant?

17

13:33:10 17

A.

No.

18

13:33:16 18

Q.

Okay.

19

13:33:17 19 uncooperative?

20

13:33:29 20

21

13:33:34 21 issues, if something was told had to be done this

22

13:33:40 22 way.

23

13:33:43 23

24

13:33:45 24 maybe not easy to work with.

25

13:33:49 25

Q.

Okay.

He wants certain things done and he

So in that sense he was arrogant,

I feel, yes. Was Dr. Jadwin disagreeable, in your

I'll take a stab at it.

I wish we could ask I don't

I'm going to try to

Disagreeable -- was Dr. Jadwin disagreeable

A.

He's pleasant. Did you find Dr. Jadwin to be

Uncooperative as far as with staff or with

Is that what you mean? Q.

A.

I guess uncooperative in the sense that

Yeah.

He -- it was not easy working with

GallegosE

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

Document 277-4

Filed 12/01/2008

Page 38 of 209 25

1

13:33:55

1 him.

2

13:33:57

2

Q.

All the time or --

3

13:33:58

3

A.

Not all the time, no.

4

13:34:01

4 moments.

5

13:34:04

5

6

13:34:07

6 easy to work with?

7

13:34:09

7

A.

Moments of not being easy to work with.

8

13:34:13

8

Q.

I see.

9

13:34:13

9

Q.

He would have his

We all have our moments. Moments of being easy to work with or not

So in other words, it wasn't all the time

10

13:34:15 10 that he was uncooperative, but there were times when

11

13:34:18 11 he was uncooperative?

12

13:34:20 12

13

13:34:21 13 uncooperative.

14

13:34:22 14

15

13:34:24 15 intimidating?

16

13:34:31 16

A.

No.

17

13:34:33 17

Q.

Okay.

18

13:34:35 18 six three or six four.

19

13:34:37 19

20

13:34:38 20

A.

Five two.

21

13:34:39 21

Q.

Five two.

22

13:34:42 22

23

13:34:45 23 aggressive or intimidating?

24

13:34:47 24

A.

No.

25

13:34:49 25

Q.

Okay.

A.

Q.

Yes.

Okay.

There were times when he was

Did you find Dr. Jadwin to be

Well, he's a tall man.

He's about

How tall are you?

So a lot smaller than he is.

Did you ever feel he was physically

Did you find Dr. Jadwin to be

GallegosE

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

Document 277-4

Filed 12/01/2008

Page 39 of 209 26

1

13:34:53

1 overbearing?

2

13:35:02

2

A.

Sometimes.

3

13:35:03

3

Q.

Sometimes.

4

13:35:04

4

There's only a couple more.

5

13:35:07

5

Did you find Dr. Jadwin to be

6

13:35:09

6 self-righteous?

7

13:35:16

7

A.

Yes.

8

13:35:18

8

Q.

Can you go into that or is it -- I mean, you

9

13:35:20

9 don't have to repeat the examples, if that's what

10

13:35:22 10 you're going to refer to.

How was he self-righteous?

11

13:35:26 11 What instances come to mind?

12

13:35:28 12

A.

He always thought he was right.

13

13:35:30 13

Q.

Okay.

14

13:35:31 14

A.

If that's the definition of self-righteous,

15

13:35:34 15 yes.

16

13:35:39 16 thought.

17

13:35:41 17

18

13:35:43 18 to other viewpoints?

19

13:35:46 19

A.

No.

20

13:35:48 20

Q.

Okay.

21

13:35:49 21 only in reference to you or is that something you

22

13:35:52 22 felt he was doing with everybody?

23

13:35:55 23

24

13:35:57 24 It's just my point of view.

25

13:35:59 25

Everything he said was right.

Q.

A.

Q.

Or so he

So you found Dr. Jadwin wasn't exactly open

And when you say that, do you mean

I don't know how he does with everybody.

Your personal interactions.

GallegosE

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Filed 12/01/2008

Page 40 of 209 27

1

13:36:01

1

2

13:36:03

2 to be unfriendly?

3

13:36:05

3

A.

No.

4

13:36:06

4

Q.

Okay.

5

13:36:11

5 you mean he was -- so he could be pleasant, then?

6

13:36:14

6

A.

He could be pleasant.

7

13:36:15

7

Q.

Okay.

8

13:36:18

8 pretty generous and kind person?

9

13:36:20

9

A.

Yes.

10

13:36:20 10

Q.

Why do you say that?

11

13:36:24 11

A.

Because we -- we as the lab or the

12

13:36:30 12 department, he's had barbecues or little outings that

13

13:36:34 13 we would go to his home.

14

13:36:37 14

15

13:36:41 15 easygoing and sociable at these outings?

16

13:36:45 16

A.

Totally different from work.

17

13:36:48 17

Q.

Okay.

18

13:36:54 18 you?

19

13:36:54 19

A.

Not necessarily me.

20

13:36:56 20

Q.

Okay.

21

13:36:57 21

A.

I just really felt kind of odd because since

22

13:37:05 22 I work with him and then how he is at work and then

23

13:37:10 23 how he is outside of work, he's just different.

24

13:37:14 24

Q.

Um-hmm.

25

13:37:15 25

A.

I'm the same at work and outside of work.

Q.

And last one, did you find Dr. Jadwin

So when you say he's not unfriendly,

Okay.

And you said outside of work he was a

Based on what?

And then you thought he was very

So more relaxed, cracking jokes with

GallegosE

I

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Page 41 of 209 28

1

13:37:21

1 don't know how else to phrase that.

2

13:37:23

2

3

13:37:25

3

4

13:37:32

4 got along generally -- generally, did you feel like

5

13:37:33

5 you got along well with Dr. Jadwin?

6

13:37:37

6

A.

I could get along with anybody.

7

13:37:45

7

Q.

Okay.

8

13:37:48

8 you got along with Dr. Jadwin?

9

13:37:52

9

A.

Yes.

10

13:37:54 10

Q.

Okay.

11

13:37:57 11 angry?

12

13:37:58 12

A.

Yes.

13

13:37:59 13

Q.

Okay.

14

13:38:02 14 many instances did you see him get angry on?

15

13:38:08 15

A.

Twice.

16

13:38:09 16

Q.

Twice.

17

13:38:11 17 instance.

18

13:38:12 18

19

13:38:15 19 how he got angry in the first instance.

20

13:38:20 20

A.

Give me a minute because I have to think.

21

13:38:22 21

Q.

Sure.

22

13:38:23 22

A.

It was way far back.

23

13:38:30 23

Q.

Take your time.

24

13:38:46 24

A.

When you mean angry, what -- you mean angry

25

13:39:02 25 such as shouting or me perceiving him to be angry or

Q.

No.

It's very clear.

Okay.

So now, do you think that you

So the answer is yes, you felt like

Have you ever seen Dr. Jadwin get

Can you tell me about -- well, how

Okay.

Let's focus on the first

Can you tell -- please go into detail about

GallegosE

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98 Page 42 of 209

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R

STATE OF CALIFORNIA

D

ss. 2

I N

COUNTY OF KERN

D E

3

X

4

5

I,

Susan R.

Wood,

a Certified Shorthand

6

Reporter in the State of California,

7

Certificate No.

8

EVANGELINE F. GALLEGOS,

9

foregoing deposition, was by me duly sworn; that said

o

deposition was taken Wednesday, April 16,

1

time and place set forth on the first page hereof.

2

6829,

holding

do hereby certify that the witness named in the

2008,

at the

That upon the taking of the deposition,

the

3

words of the witness were written down by me in

4

stenotypy and thereafter transcribed by computer under

5

my supervision;

6

transcript of the testimony given by the witness.

7

that the foregoing is a true and correct

I further certify that I am neither counsel for

8

nor in any way related to any party to said action,

9

in any way interested in the result or outcome thereof.

o 1

Dated this 19th day of May,

2008,

at

Bakersfield, California.

2 3

Susan R.

Wood,

4

5

WOOD & RANDALL (800) 322-4595

CSR No.

6829

nor

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

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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

EXHIBIT 38

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

43

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1

UNITED STATES DISTRICT COURT

2

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

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3

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8

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9

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12

13

13

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14

MARVIN OTTO KOLB, M.D.

15

15

Saturday, April 19, 2008

16

16

Los Angeles, California

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20

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21

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24

25

25

DAVID F. JADWIN, D.O.,

) ) ) ) ) ) ) ) ) )

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

Case No. 1:07-cv-00026-OWW-TAG

VIDEOTAPED DEPOSITION OF

Reported by:

Lynda L. Fenn, CSR No. 12566

KolbM

Page 44 of 209 1

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

Document 277-4

1

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MR. PEAKE:

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MR. LEE:

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THE WITNESS:

5

Page 45 of 209 17

professional? That's probably compound. You can answer, Dr. Kolb. As I would know people who were

5

working there in a similar capacity, I would say

6

6

relatively well, yes.

7

7

BY MR. LEE:

8

8

Q

9

9

Dr. Jadwin?

10

10:23

Filed 12/01/2008

10

A

11

11

everybody.

12

12

Q

13

13

14

14

A

I would say yes.

15

Q

Did you like Dr. Jadwin?

16

16

A

I liked everybody.

17

17

Q

Okay.

18

18

19

19

15

20

10:23

Would you say you were friendly with

10:23

10:24

20

I would like to think I was friendly with

Uh-huh.

So the answer is yes, you were

friendly with Dr. Jadwin?

And you didn't find Dr. Jadwin to be

arrogant to you? A

Oh, you're back to that question again.

21

MR. PEAKE:

22

22

THE WITNESS:

23

23

MR. PEAKE:

24

24

MR. LEE:

25

THE WITNESS:

10:24

I

don't know what you are asking.

21

25

I liked Dr. Jadwin.

Yeah, it really is vague. Huh? It really is vague. You can answer, Dr. Kolb.

KolbM

Describe for me an arrogant

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

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Page 46 of 209 19

1

1

terms not -- you know, not being arrogant, just let me

2

2

know.

3

3

So, conceited, yes or no?

4

4

MR. WASSER:

5

10:26

5

These are supposed to be

characteristics of arrogance?

6

6

MR. LEE:

7

7

MR. PEAKE:

8

8

MR. LEE:

9

9

THE WITNESS:

10

Aspects of arrogance, actually. Fine. So then, are you asking me if I

10

agree with that word as arrogance or if I agree that

11

11

that characterizes David -- Dr. Jadwin?

12

12

MR. LEE:

13

13

THE WITNESS:

14

14

want to make sure.

15

MR. LEE:

15

10:26

Yeah, or synonyms of arrogance.

10:26

That's a good point. Well, what are you asking?

I

Sorry, Madam Reporter.

16

16

BY MR. LEE:

17

17

Q

18

18

19

19

conceited?

20

A

No.

21

21

Q

Would you characterize Dr. Jadwin as pompous?

22

22

A

From my perspective?

23

23

Q

Yes.

24

24

A

No.

25

Q

Would you characterize Dr. Jadwin as being

20

25

10:26

10:26

That's a very good point. Would you characterize Dr. Jadwin as

KolbM

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

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Filed 12/01/2008

Page 47 of 209 20

patronizing? MR. PEAKE:

You are talking about his

interactions? MR. LEE:

Based on your interactions.

All of

5

these questions are based on your interactions with

6

6

Dr. Jadwin.

7

7

THE WITNESS:

8

8

MR. LEE:

9

9

10

10:26

Document 277-4

Yeah.

BY MR. LEE:

10

Q

Or in general?

11

11

A

Well, my only interaction -- you know, I

12

12

13

13

14

14

15

10:26

That he was patronizing of me?

I can answer my interaction with him if I thought he was patronizing of me.

15

Q

Uh-huh.

16

16

A

No.

17

17

Q

Okay.

18

18

19

19

MR. WASSER:

20

MR. LEE:

21

21

THE WITNESS:

22

22

MR. LEE:

23

23

BY MR. LEE:

24

24

Q

20

25

10:27

wasn't around him all the time, so I can't answer that.

10:27

10:27

25

Would you characterize Dr. Jadwin as

viewing himself as being better than you? Better than Dr. Kolb?

Yes, I said "you." I didn't feel that.

Okay.

So, after hearing all this, would you agree

Dr. Jadwin was not arrogant to you?

KolbM

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

1

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10:27

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A

Document 277-4

Filed 12/01/2008

Page 48 of 209 21

If you are describing what you just referenced

as words that would describe arrogance. Q

Uh-huh. MR. PEAKE:

And the question really is vague,

but go ahead.

6

6

7

7

the question as no in my interaction with David -- Dr.

8

8

Jadwin on those issues.

9

9

10

10

BY MR. LEE:

11

11

Q

12

12

13

13

14

14

15

10:27

THE WITNESS:

MR. LEE:

So then I would say I answered

Okay.

So the question is:

Would you agree that

Dr. Jadwin is not arrogant or arrogant? MR. PEAKE:

Well, that's overbroad again and

vague.

15

THE WITNESS:

I'll go back to the -- the

16

16

questions that you asked before about the definition of

17

17

arrogance, did I see those characterizes in my

18

18

relationship with David, and I said no to them.

19

19

20

Okay.

Dr. Kolb, it's really a

20

simple question.

21

21

BY MR. LEE:

22

22

Q

23

23

24

24

The witness is not prepared to answer the question yes

25

or no.

25

10:28

MR. LEE:

10:28

Yes or no will do.

Do you think Dr. Jadwin was arrogant to you? MR. PEAKE:

That's actually argumentative.

The witness can answer the question any way they

KolbM

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

Document 277-4

1

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2

2

3

3

BY MR. LEE:

4

4

Q

5

10:28

5

MR. LEE:

Okay.

Okay.

Mr. Peake, thank you.

Did you believe that Dr. Jadwin was

arrogant to you?

6

7

7

8

8

MR. LEE:

9

9

THE WITNESS:

MR. PEAKE:

Well, that's, again,

argumentative. You can answer, Dr. Kolb. I do not feel that in my

10

interaction with Dr. Jadwin in our professional roles

11

11

that the characteristics that you just asked me about

12

12

referencing those describing arrogance, did I see those

13

13

in Dr. Jadwin.

14

14

15

15

that.

16

16

is -- I'm not asking about the characteristics that we

17

17

just discussed.

18

18

BY MR. LEE:

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19

Q

20

10:28

Page 49 of 209 22

feel to reflect their state of mind.

6

10

Filed 12/01/2008

10:29

20

MR. LEE:

Dr. Kolb, we already established

The question again, and I just want an answer,

I'm asking whether you think Dr. Jadwin was

arrogant to you?

21

21

MR. PEAKE:

22

22

MR. LEE:

23

23

MR. WASSER:

24

24

25

10:29

25

It's vague. Okay.

It's ambiguous.

You can answer, Dr. Kolb.

This is going to take until 6:00

at this point. THE WITNESS:

KolbM

I don't believe so.

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

Document 277-4

1

1

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BY MR. LEE:

3

3

Q

4

4

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10:29

MR. LEE:

Filed 12/01/2008

Page 50 of 209 23

Thank you.

Did you have any interactions with Bill Taylor

or otherwise known as Edward Taylor, T-a-y-l-o-r?

5

A

He was a member of the medical staff, so I

6

6

7

7

8

8

Dr. Taylor, say, on a weekly basis, during your tenure

9

9

at Kern Medical Center?

10

10:29

would have interactions with him, correct. Q

10

A

How often did you have interactions with

I couldn't say that.

Sometimes it was weekly;

11

11

sometimes it would go weeks without interactions with

12

12

him.

13

13

Q

14

14

Dr. Taylor?

15

A

I would define it that way.

16

16

Q

Okay.

17

17

18

18

A

We had a very professional relationship.

19

19

Q

Okay.

20

Dr. Taylor?

21

21

A

Personally?

22

22

Q

Uh-huh.

23

23

A

No.

24

24

Q

How about professional?

25

A

There's a difference between liking a person

15

20

25

10:30

10:30

10:30

So you had sporadic interactions with

And how did you get along with

Dr. Taylor, in your opinion?

Did you ever have reason to dislike

KolbM

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

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Page 51 of 209 36

1

1

Q

Of pathology?

2

2

A

-- the pathology department, all of the chairs

3

3

4

4

5

10:55

5

reported to me, correct. Q

Did you meet with Dr. Jadwin one-on-one as a

chair pathologist?

6

6

A

Correct.

7

7

Q

Would you say it was on a bi-weekly basis or

8

8

9

9

10

10:56

10

how frequently were these one-on-one meetings? A

I know there was some periodicity to it, but I

don't remember exactly what it was.

11

11

12

12

department chairs at Kern Medical Center while you were

13

13

the CMO or chief medical officer?

14

14

15

A

How often, in general, did you meet with

My recollection is that I tried to meet with

15

each one of them at least monthly, if not -- and it

16

16

depended on kind of their scope of activities.

17

17

18

18

frequently than other department chairs at Kern Medical

19

19

Center?

20

10:56

Q

Did you meet with Dr. Jadwin more or less

20

A

I don't think there was any difference.

21

21

Q

Did the department of pathology run well under

22

22

23

23

MR. PEAKE:

24

24

MR. LEE:

25

THE WITNESS:

25

10:56

Q

10:57

Dr. Jadwin's chairmanship, in your opinion? May be vague.

Overbroad.

You can answer.

KolbM

By "well," do you mean that it

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

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Filed 12/01/2008

Page 52 of 209 37

1

1

met the expectations that we, as the medical staff,

2

2

needed?

3

3

BY MR. LEE:

4

4

Q

5

10:57

5

Yes.

Did you note any problems with the department

of pathology operating under Dr. Jadwin?

6

6

MR. PEAKE:

7

7

MR. LEE:

8

8

THE WITNESS:

9

9

10

Okay.

Overbroad.

You can answer.

I guess I'd have to ask you what

you mean by "problems."

10

Just the normal operations, there are

11

11

problems, you know, that you have to deal with.

12

12

I think it was a large department and there's a large

13

13

clinical laboratory that's part of it.

14

14

15

10:57

Again, it's vague.

10:57

15

And so

So there's problems that exist as part of the normal operation and implementation of that.

16

16

17

17

that were part of the laboratory to make things run

18

18

fairly effective and the laboratory services at Kern

19

19

Medical Center?

20

10:58

So, did I think that he worked with his people

20

MR. LEE:

21

21

BY MR. LEE:

22

22

Q

23

23

24

24

25

10:58

25

Yes. Okay.

Let's get into the circumstances of the hiring

of Dr. Jadwin. Why was Dr. Jadwin recruited to the chair of the department of pathology at Kern Medical Center?

KolbM

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

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Page 53 of 209 62

1

1

2

2

A

I don't know.

3

3

Q

Would you agree that Dr. Jadwin made quality

4

4

changes and improvements to the pathology department at

5

Kern Medical Center?

6

6

MR. PEAKE:

7

7

THE WITNESS:

8

8

again?

9

9

BY MR. LEE:

5

10

11:21

11:21

10

County would have destroyed those notes?

Q

Compound.

Vague.

Would you repeat the question

Would you agree that Dr. Jadwin made quality

11

11

improvements in the department of pathology at Kern

12

12

Medical Center?

13

13

MR. PEAKE:

14

14

THE WITNESS:

15

As a general statement, I would

15

say yes.

16

16

BY MR. LEE:

17

17

Q

18

18

19

19

A

I would say yes.

20

Q

Did you ever oppose any of those changes that

20

11:21

Again, vague and ambiguous.

11:22

Were you supportive of those quality changes

that Dr. Jadwin instituted in the pathology department?

21

21

Dr. Jadwin was making in the pathology department to

22

22

improve quality?

23

23

24

24

25

11:22

25

MR. PEAKE:

I think it's vague.

ambiguous. THE WITNESS:

KolbM

I can't remember.

May be

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

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Page 54 of 209 75

1

1

Mr. Wasser.

2

2

BY MR. LEE:

3

3

Q

4

4

MR. PEAKE:

5

THE WITNESS:

6

6

MR. LEE:

7

7

THE WITNESS:

8

8

There's a piece -- I just can't be a hundred percent

9

9

sure, no.

5

10

11:33

Okay.

Dr. Kolb, can you answer the question? Your personal knowledge. I can't remember that for sure.

So you think -I'm afraid to answer it yes.

So my answer is I don't remember.

10

BY MR. LEE:

11

11

Q

12

12

to anger management therapy during your tenure as CMO at

13

13

Kern Medical Center?

14

14

A

I did.

15

Q

How many physicians did you send to anger

15

11:34

You don't have to go on the record.

11:34

Do you recall ever sending any core physicians

16

16

17

17

A

Less than five.

18

18

Q

Did you ever send Dr. Jadwin to anger

19

19

management therapy during your tenure as CMO at Kern

20

20

Medical Center?

21

21

22

22

allowing him to answer that question, since you are

23

23

posing it as Dr. Jadwin's counsel.

24

24

25

11:34

25

management during your tenure as CMO?

MR. PEAKE:

MR. LEE:

Well, I'm assuming that you are

Your objection -- just answer the

question, Dr. Kolb.

KolbM

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privilege is being waived with respect to any actions

3

3

that involve Dr. Jadwin.

4

4

MR. LEE:

5

MR. PEAKE:

5

11:34

6

6

7

7

8

8

9

9

10

Well, I just want to make sure any

Mr. Peake -Because I don't know the scope of

the issues. MR. LEE:

Mr. Peake, you are not objecting and

you are not instructing him not to answer yet again. Dr. Kolb, you can answer.

10

THE WITNESS:

11

11

MR. LEE:

12

12

BY MR. LEE:

13

13

Q

14

14

other whether you sent Dr. Jadwin to anger management

15

therapy during your tenure --

15

11:35

MR. PEAKE:

Filed 12/01/2008

11:35

I don't remember.

Okay.

So you don't know for sure one way or the

16

16

A

That's correct.

17

17

Q

-- as CMO?

18

18

A

That's correct.

19

19

Q

Do you ever recall an incident where a

20

20

physician became angry and drove through the parking

21

21

gate at Kern Medical Center -- the parking gate blocker,

22

22

I suppose you call it?

23

23

A

No.

24

24

Q

Do you recall an incident or a situation where

25

11:35

11:35

25

Dr. James -- well, first of all, let's back up.

KolbM

KOLB, M.D. Case 1:07-cv-00026-OWW-TAG

Document 277-4

Filed 12/01/2008

04-19-08 Page 56 of 209 Page 134

C E R T I F I CAT E

I,

the undersigned, a Certified Shorthand

Reporter for the State of California, do hereby certify: That the foregoing proceedings were taken before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were placed under oath; that a verbatim record of the proceedings was made by me using machine shorthand, which was thereafter transcribed under my direction; further,

that the foregoing is an accurate

transcription thereof. I further certify that I am neither financially interested in the action nor a relative or employee of any attorney of any of the parties. IN WITNESS THEREOF, I have this date subscribed my name this 1st day of May, 2008.

Lynda L. Fenn, CSR No. 12566

vs.

COUNTY OF KERN (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 57 of 209

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

EXHIBIT 39

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

44

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

1

09:49:49

1

2

09:35:04

2

3

09:35:04

3

4

4

Document 277-4

Filed 12/01/2008

Page 58 of 209 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA --------DAVID F. JADWIN, D.O.,

) No. 1:07-cv-00026-OWW-TAG )

5

5

Plaintiff,

) )

6

6

vs.

) )

7

7

COUNTY OF KERN, et al.

) )

8

8

Defendants.

)

___________________________) 9

09:35:04

9

10

09:35:04 10

11

09:35:04 11

12

09:35:04 12

13

09:35:04 13

14

09:35:04 14

15

09:35:04 15

16

09:35:04 16

17

09:35:04 17

VIDEOTAPED DESPOSITION

18

09:35:04 18

OF

19

09:35:04 19

20

09:35:04 20

21

09:35:04 21

22

09:35:04 22

TRACY LINDSEY Tuesday, February 26, 2008 Bakersfield, California

23 24

09:35:04 23

25 26

09:35:04 24

27 28

09:35:04 25

Reported by:

Cindee L. LeFevre, CSR No. 7974

LindseyT

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

1

Q.

Document 277-4

Great.

Filed 12/01/2008

Page 59 of 209 8

08:09:18 today's

1

Are you aware of any reason why

08:09:24

2

08:09:25

3

A.

No.

08:09:27 4 restricts 08:09:29 5 08:09:33 6 08:09:34 7 08:09:36 8 08:09:38 9 08:09:40 10 08:09:45 11 08:09:49 12 08:09:51 13 were

Q.

Is there anything that prevents you or

2 deposition cannot proceed?

3 4 5 6 7 8 9 10 11 12 13 14

you from giving your best most truthful answers today? A. No. Q. Have you taken any medication in the last 24 hours, drugs or alcohol? A. No. Q. Great. So you stated earlier that you started working at KMC in March of '05; correct? A. Yes. Q. Can you state the people that -- you said you

15 08:09:54 14

a secretary to the chair.

16 08:09:56 15

A.

Uh-huh.

08:09:56 16

Q.

Which chairs have you worked for during your

17 18 08:09:59 17

tenure at KMC?

19 08:10:00 18

A.

Dr. Jadwin and Dr. Dutt.

08:10:04 19

Q.

Dr. Philip Dutt?

08:10:05 20

A.

Yes.

08:10:05 21

Q.

Is that spelled with two "L's" or one?

08:10:08 22

A.

I think it's one.

08:10:12 23

Q.

Did you find Dr. Jadwin to be arrogant?

08:10:16 24

A.

No.

08:10:18 25

Q.

Did you find him to be overbearing?

20 21 22 23 24 25 26 27 28

LindseyT

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

1 2

A. Q.

Document 277-4

Filed 12/01/2008

Page 60 of 209 9

08:10:21 08:10:23 other

1 2

No. Did you find Dr. Jadwin to be dismissive of

08:10:27

3

08:10:30

4

A.

No.

08:10:32

5

Q.

Did you ever have reason to believe that Dr.

08:10:37

6

08:10:42

7

A.

No.

08:10:44 8 Dr. 08:10:48 9 08:10:50 10 08:10:50 11 to?

Q.

How did you find Dr. Jadwin as -- he was --

3 people's input or opinions?

4 5 6 Jadwin was engaging in any kind of fraud or dishonesty?

7 8 9 10 11 12

Jadwin was your boss; correct? A. Yes. Q. He was the person that you directly reported

13 08:10:53 12

A.

Yes.

08:10:53 13

Q.

How did you find Dr. Jadwin as a boss?

08:11:02 14

A.

He was good, approachable.

08:11:06 as 08:11:09 08:11:09 08:11:17 Jadwin

Q.

Did you have any complaints about Dr. Jadwin

14 15 16 17 18 19 20

15 16 17 18

your boss? A. No. Q. How much interaction did you have with Dr.

21 08:11:20 19

on a daily basis, if you could estimate.

22 08:11:26 20

A.

Probably about 80 percent.

08:11:31 21

Q.

You mean 80 percent of your interactions with

23 24 08:11:34 22

people in the day would be with Dr. Jadwin?

25 08:11:37 23

A.

Yeah, I guess.

08:11:38 24 then? 08:11:43 25

Q.

So you worked pretty closely with Dr. Jadwin

A.

Yes.

26 27 28

LindseyT

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

1

Q.

Document 277-4

Filed 12/01/2008

Page 61 of 209 10

08:11:44 you

1

And would you say he is the person at KMC that

08:11:48

2

08:11:51

3

A.

Yes.

08:11:55 '05 to 08:12:02 08:12:05 08:12:06 you

4

Q.

So you worked with Dr. Jadwin from March of

5 6 7

October of '06. A. Yes. Q. Okay.

08:12:11

8

hear about Dr. Jadwin's departure from KMC?

08:12:14

9

A.

It was just a personal leave.

08:12:19 personal 08:12:22 08:12:23 08:12:26 08:12:30 08:12:32 he

10

Q.

So you were consistently told it was a

2 worked the most closely with?

3 4 5 6 7 8

Is that correct? What did you hear was the -- what did

9 10 11 12 13 14 15 16 17

11 12 13 14 15

leave? A. Yeah, there wasn't much said about it. Q. And what you did hear about Dr. Jadwin's departure, who told it to you? A. I don't think anyone ever really did say that

18 08:12:35 16

was gone.

19 08:12:38 17

Q.

So what is your understanding of Dr. Jadwin's

20 08:12:41 18

employment status as of today as you sit here?

21 08:12:45 19

A.

Leave of absence.

08:12:47 Dr. 08:12:51 08:12:55 08:12:58 08:12:58 08:13:11 the

Q.

Absence.

22 23 24 25 26 27 28

20 21 22 23 24 25

And what is your understanding of

Philip Dutt's position at KMC as of today? A. He is interim chair. Q. Interim chair? A. Yes. Q. Did you notice any difficulties or problems in

LindseyT

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

Document 277-4

Filed 12/01/2008

Page02-26-08 62 of 209

Page 92 1

STATE OF CALIFORNIA

2 3

ss. COUNTY OF KERN

4

5

I, Cindee L. LeFevre, a Certified Shorthand

6

Reporter in the State of California, holding certification

7

No. 7974, do hereby certify that TRACY LINDSEY,

8

the witness named in the foregoing deposition,

9

was by me duly sworn; that said deposition was taken

10

Tuesday, February 26, 2008, at the time and place set forth

l I o n the first page hereof.

12

That upon the taking of the deposition,

the

13

words of the witness were written down by me in stenotypy

14

and thereafter transcribed by computer under my supervision;

15

that the foregoing is a true and correct transcript of the

16

testimony given by the witness.

17

I further certify that I am neither counsel for

18

nor in any way related to any party to said action, nor in

19

any way interested in the result or outcome thereof.

20 21

Dated this 18th of March, 2008, at Bakersfield, California.

22 23 24 25

vs. RANDALL

COUNTY OF KERN (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 63 of 209

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

EXHIBIT 40

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

45

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

1

Document 277-4

Filed 12/01/2008

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

---------

4 5 6 7 8

DAVID F. JADWIN, D.O.,

) No. 1:07-cv-00026-OWW-TAG ) Plaintiff, ) ) vs. ) ) COUNTY OF KERN, et al. ) ) Defendants. ) ___________________________)

9 10 11 12 13 14

DESPOSITION OF IRENE LOPEZ

15

Tuesday, February 26, 2008

16

Bakersfield, California

17 18 19 20

Reported by:

Cindee L. LeFevre, CSR No. 7974

21 22 23 24 25

LopezI

Page 64 of 209 1

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

1

Filed 12/01/2008

Page 65 of 209 8

blood products that were ordered.

2 3

Document 277-4

Q.

Okay.

Who was your direct supervisor while you

were working at KMC?

4

A.

It would be Gilbert Martinez, lab manager.

5

Q.

Did you have many interactions with Dr. Jadwin,

6

David F. Jadwin?

7

A.

Yeah, I worked with him, I would say, pretty much

8

on a daily basis, whether it be looking for slides or him

9

asking me to pull a prior pathology report, sending out

10

specimens to UCLA, Cedar Sinai.

11

labs.

12

I don't remember the other

It's been three and a half years. Q.

13

That's pretty good. Well, if you could just estimate --

14

A.

Uh-huh.

15

Q.

-- how many interactions in a week you would have

16 17 18

had with Dr. Jadwin. A.

Pretty much I would say on a daily basis and quite

often throughout the day.

19

Q.

Okay.

20

A.

No, I personally did not.

21

Did you find Dr. Jadwin to be arrogant? I would say I would

find him intimidating.

22

Q.

What was intimidating about Mr. Jadwin?

23

A.

I would say his presence.

You come into the

24

office and you just see a tall person.

25

clerical, extra help.

So --

LopezI

I was entry level

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

1

A.

Document 277-4

Filed 12/01/2008

Page 66 of 209 10

No, but honestly speaking, I would say, you know,

2

we did interact, you know, him being a pathologist and me

3

being clerical, and him needing something.

4

Sometimes he would come through the office, and I

5

would say he would have a dry sense of humor.

6

would say things, and I am, like, okay.so that was funny or

7

something like that.

8

overall a pleasant experience.

9 10

Q.

Sometimes he

I didn't quite catch it, but it was

So he was trying to be funny, and it didn't quite

work out then?

11

A.

Yeah.

12

Q.

Okay.

13

A.

Or I didn't understand it or I missed something.

14

Q.

Right.

15

A.

I would be, like --

16

Q.

I get that reaction with my jokes all the time.

17 18 19

Did you ever see Dr. Jadwin emotional, upset, during your tenure at KMC? A.

That I recall an incident, no.

No, I would hear

20

co-workers within the lab say, oh, you know, just

21

complaining of X, Y, or Z reason, he did this, this

22

happened, but that was it.

Nothing that I saw personally --

23

Q.

Uh-huh.

24

A.

-- finding offensive or harassing, in that nature.

25

I mean, I believe it happens everywhere you go.

LopezI

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

Document 277-4

Filed 12/01/2008

Page 67 of 209 11

1

Q.

Right.

2

A.

So --

3

Q.

So I mean, the complaints about Dr. Jadwin that

4

you were hearing --

5

A.

Uh-huh.

6

Q.

-- there was nothing remarkable about them.

7

Just

the kind of complaints you would hear in most workplaces?

8

A.

Yes, I would be safe to say, yes.

9

Q.

Would you agree that Dr. Jadwin then was generally

10 11

well liked in the Department of pathology? A.

I wouldn't necessarily say that he was well liked.

12

I know there was some people who did like him.

13

others that verbally voiced their dislikes.

14 15 16 17

Q.

There was

Would you mind stating the names of the people who

disliked Dr. Jadwin or stated they disliked him? A.

There was certain people that I knew that I

just -- I worked with on a everyday basis.

18

Q.

Uh-huh.

19

A.

I know Vangie Tolentino --

20

Q.

Uh-huh.

21

A.

-- was one, and she had a lot more one-on-one

22

interaction with him.

23

Rachelle Dirui.

She was a histology tech.

24

Q.

Could you spell that.

25

A.

Rachelle D-i-r-u-i.

I know

I believe she is retired now.

LopezI

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

Document 277-4

Filed 12/01/2008

Page 68 of 209 12

1

You know, she often complained of this or that, you know.

2

They had different duties than I did, so oftentimes I would

3

just kind of listen and so forth.

4 5

Q.

Miss -- Vangie, does she complain a lot

generally?

6

A.

She was just, I think -- I mean, I don't really

7

know the nature.

8

pick them up from ER, assess them.

9

I know she assessed specimens, would go

He would cut them, whatever they did back there.

10

Oftentimes, I think it was maybe the procedures that were in

11

place.

12

None of that.

13

She had one way of doing them, and he wanted them done one

14

way.

15 16

Q.

It wasn't anything about personality or harassment. I think it was more the procedures in place.

So it was more in the nature of disagreements

about the way things should be done.

17

A.

Yes.

18

Q.

So was it Vangie's then --

19

A.

Yes.

20

Q.

-- voicing these concerns?

21

A.

Yes, there was other people.

Yes?

I mean, those were

22

the ones that I directly, you know -- I would say friends

23

that I could probably sit down, have a everyday conversation

24

with.

25

most.

So those are probably the ones that I would hear the

LopezI

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

Document 277-4

Filed 12/01/2008

Page 69 of 209 15

1

would go and ask him something, and I would see that, you

2

know, she would be -- I would say a little bit uneasy, a

3

little bit uncomfortable.

4

Q.

Okay.

So would you agree that -- well, so you

5

don't think -- do you think Dr. Jadwin was disagreeable

6

then?

7 8

MR. WASSER: BY MR. LEE:

9 10

To Dr. Shertukde?

Q.

Just generally speaking, did you ever find Dr.

Jadwin acted in a manner that was disagreeable?

11

A.

Such as what or --

12

Q.

In your interactions with Dr. Jadwin, did you ever

13

find him to be disagreeable?

14

A.

In other words, he had his own mind, his own way

15

of doing things, and are you saying not coming to an

16

agreement or a give and take relationship?

17 18

Q.

Maybe I should switch the word.

Did you ever find

Dr. Jadwin to be overbearing?

19

A.

I don't think I understand.

20

Q.

Now, these are kind of SAT words.

Let me say --

21

overbearing would be, I guess, intimidating or, you know,

22

speaking in a loud voice in a dominating manner.

23

So with that definition of overbearing, would you

24

say that Dr. Jadwin was overbearing in his behavior towards

25

you?

LopezI

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

Document 277-4

1

A.

Towards me, no.

2

Q.

Okay.

3

Page 70 of 209 16

Well, did you ever witness Dr. Jadwin being

overbearing towards other people?

4

A.

I am not sure.

5

Q.

Okay.

6

Filed 12/01/2008

Did you ever see Dr. Jadwin act in a manner

that was unfriendly towards you?

7

A.

Towards me, no.

8

Q.

Did you see Dr. Jadwin acting in a manner that was

9

unfriendly toward other people at KMC?

10

A.

I don't recall.

11

Q.

Did you ever witness Dr. Jadwin acting in an

12

unprofessional manner during your time at KMC?

13

A.

Unprofessional, no.

14

Q.

Did you ever notice Dr. Jadwin or did you ever

15

witness Dr. Jadwin acting in a manner that was dismissive

16

towards other people's views and ideas at KMC?

17

A.

I am not sure.

18

Q.

Okay.

19 20

Did you ever have any interactions with Dr.

Jadwin outside of KMC? Q.

After I left KMC, he did have a gathering for all

21

the personnel.

This was probably -- it was County Fair

22

time, so I am thinking September of '05.

23

He had a gathering for lab personnel, and he requested, I

24

think it was through Vangie -- the invitation was -- he

25

extended invitations to me and I believe Vangie and I did

LopezI

The lab personnel.

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

Document 277-4

Filed 12/01/2008

Page 71 of 209 02-26-08

Page 26 STATE OF CALIFORNIA ss. COUNTY OF KERN

I, Cindee L. LeFevre, a Certified Shorthand in the State of California, holding certification 7974, do hereby certify that IRENE LOPEZ, witness named in the foregoing deposition, by me duly sworn; that said deposition was taken Tuesday, February 26, 2008, at the time and place set forth the first page hereof. That upon the taking of the deposition, the the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision; is a true and correct transcript of the given by the witness. I further certify that I am neither counsel for in any way related to any party to said action, nor in way interested in the result or outcome thereof. Dated this 18th day of March, 2008, at akersfield, California.

Cindee L. LeFevre, CSR No. 7974

VS.

NDALL

COUNTY OF KERN (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 72 of 209

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

EXHIBIT 41

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

46

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

JAVAD NADERI, M.D.

17

Thursday, December 6, 2007

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

NaderiJ

Page 73 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 74 of 209 38

1

10:55:54

1 either of yourself or an immediate family member

2

10:55:57

2 during your employment at KMC?

3

10:55:58

3

A.

No.

4

10:55:59

4

Q.

Dr. Naderi, do you have any children?

5

10:56:08

5

A.

Three.

6

10:56:08

6

Q.

Have any of your children experienced an

7

10:56:16

7 accident or been seriously hurt --

8

10:56:18

8

A.

Yes.

9

10:56:18

9

Q.

-- or injured during your time of employment

10

10:56:21 10 at KMC?

11

10:56:22 11

A.

Yes.

12

10:56:22 12

Q.

Can you tell me roughly when that occurred?

13

10:56:26 13

A.

That was 1998.

14

10:56:33 14 school education -- I mean graduation -- he -- my son

15

10:56:38 15 got involved in accident and he got paralyzed.

16

10:56:42 16 was in coma for -- excuse me.

17

10:57:15 17 involved with that, but I was on and off, back and

18

10:57:18 18 forth to work taking care of him, the hospital, come

19

10:57:25 19 back and forth.

20

10:57:28 20 continuous.

21

10:57:28 21

Q.

So Dr. Naderi --

22

10:57:30 22

A.

Does that answer your question?

23

10:57:32 23

Q.

Yes, it does, Dr. Naderi.

24

10:57:35 24 intermittent leave of absence, then, that you took in

25

10:57:37 25 relation to your son's accident?

Three days after his high

He

And so I was -- I was

It was intermittent, it was not

NaderiJ

So that was an

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

A.

Document 277-4

Filed 12/01/2008

Page 75 of 209 39

1

10:57:39

1

2

10:57:42

2 think I had enough vacation to take care of that.

3

10:57:47

3

4

10:57:52

4 continue for?

5

10:57:57

5

6

10:58:02

6 not going to answer.

7

10:58:04

7

8

10:58:07

8 estimate of the amount of time that you were on

9

10:58:09

9 intermittent leave at the hospital.

Q.

It was sick leave, vacation or what.

I

A.

How long did your intermittent work schedule

Q.

The subject for me is very difficult.

I'm

A.

Well, Dr. Naderi, we do need to know just an

10

10:58:11 10

11

10:58:16 11 more than two months was no -- at no time was any

12

10:58:20 12 continuation of leave of absence more than two months

13

10:58:25 13 as you wanted to.

14

10:58:27 14

15

10:58:30 15 My question is, for how long did the intermittent

16

10:58:33 16 leave of absence -- or I'm sorry -- the intermittent

17

10:58:36 17 work schedule that you were on in connection with

18

10:58:38 18 your son's accident, how long did that continue?

19

10:58:40 19 What was the duration of that intermittent work

20

10:58:45 20 schedule?

21

10:58:47 21

22

10:58:48 22 mischaracterizing his testimony.

23

10:58:50 23 he was on an intermittent work schedule, he said he

24

10:58:54 24 came and went.

25

10:58:56 25 intermittent work schedule, coming and going.

Q.

Was no continuation, as your question is

Dr. Naderi, that doesn't answer my question.

MR. WASSER:

I think you're He's not testified

That may be different from an

NaderiJ

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

Document 277-4

Filed 12/01/2008

Page 76 of 209 43

1

11:02:01

1 that?

2

11:02:02

2

A.

Yes.

3

11:02:04

3

Q.

Okay.

4

11:02:10

4 working a few days and taking off a few days in

5

11:02:14

5 connection with your son's accident, were you

6

11:02:18

6 notified of your rights and obligations under the

7

11:02:23

7 Fair -- I'm sorry, the Family Medical Leave Act or

8

11:02:27

8 the California Family Rights Act?

9

11:02:32

9

10

A.

Thank you. When you were on this schedule of

I didn't ask anybody.

I just used my sick

11:02:36 10 leave and my vacation.

11

11

Q.

Are you fam- --

12

11:02:39 12

A.

I didn't ask anybody because I didn't want

13

11:02:41 13 to have any leave of absence.

14

11:02:44 14 anything special for me to be gone because my family

15

11:02:49 15 was involved in accident, I just use my sick leave

16

11:02:51 16 and my vacation.

17

11:02:58 17 vacation, we don't have to ask for favor, we just

18

11:03:04 18 take vacation.

19

11:03:08 19 to explain anything to me.

20

11:03:09 20

21

11:03:15 21 your direct supervisor at KMC?

22

11:03:20 22

23

Q.

I did not want to have

When you or me or anybody takes

So I didn't ask anybody, nobody had

Dr. Naderi, was it -- who was your -- who is

MR. WASSER:

Now?

23 BY MR. LEE:

24

11:03:22 24

Q.

Now.

25

11:03:22 25

A.

As a chairman, then the next step above you

NaderiJ

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

Document 277-4

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Page 77 of 209 51

1

11:11:44

1 answer.

2

11:11:44

2

3

11:11:47

3 Mark.

4

11:11:48

4 necessary.

5

11:11:49

5

6

11:11:51

6 and no?

7

11:11:51

7

8

11:11:53

8 hospital -- I mean the function of the department

9

11:11:58

9 is -- does not need any -- anything from anybody else

MR. LEE: Thank you.

Q.

Your objection's on the record, No further discussion is

A.

Can you please clarify what you mean by yes

Whenever I thought the function of the

10

11:12:07 10 and was a short term, and I was here, so I didn't

11

11:12:13 11 inform.

12

11:12:19 12 matter what, those days were marked as vacation or

13

11:12:24 13 sick leave, no matter whether they knew or they

14

11:12:29 14 didn't.

15

11:12:29 15

16

11:12:34 16 had been in an accident?

17

11:12:43 17 KMC?

18

11:12:44 18

19

11:12:47 19 "anyone"?

20

11:12:50 20 what does it mean anyone?

21

11:12:52 21

22

11:12:55 22 at KMC that your son had been in an accident?

23

11:13:02 23

24

11:13:05 24 that because that was very bad accident, and they

25

11:13:11 25 knew that he is in ICU and he's comatose.

Q.

Whenever needed, I informed them.

Well, did you notify anyone that your son

A.

Q.

A.

But no

Did you notify anyone at

You mean anyone -- what do you mean That means employee of the department, or

Okay.

Yes.

Did you notify any employee or staff

Even before I informed them, they knew

NaderiJ

They knew,

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

Document 277-4

Filed 12/01/2008

Page 78 of 209 63

1

11:39:22

1

Q.

Okay.

2

11:39:23

2

A.

Not -- no personal relationship, but

3

11:39:26

3 reasonable professional relationship.

4

11:39:29

4

5

11:39:31

5 relationship with Dr. Jadwin?

6

11:39:34

6

A.

Okay.

7

11:39:35

7

Q.

Did you find Dr. Jadwin to be arrogant?

8

11:39:47

8

A.

I don't -- I don't like to characterize

9

11:39:51

9 anybody by, you know, terminology.

Q.

Okay.

Well, how would you characterize your

Good.

We all have

10

11:39:55 10 different personalities.

11

11:39:58 11 yes or no answer, but I don't think it's nice -- I

12

11:40:02 12 don't think it's nice to talk about somebody.

13

11:40:05 13 have all different personalities.

14

11:40:10 14 know, each of us we are different, so arrogant to you

15

11:40:17 15 may not be arrogant to me.

16

11:40:23 16 has different personality than somebody else, which

17

11:40:26 17 is fine.

18

11:40:27 18

19

11:40:31 19 your interactions with Dr. Jadwin?

20

11:40:34 20

21

11:40:41 21 relationship, like I have with other departments.

22

11:40:46 22 Surgery, we might have discussions about cases, I

23

11:40:51 23 give him discussion, but not more than that.

24

11:40:53 24

25

11:40:56 25 instances where Dr. Jadwin was emotional or

Q.

A.

Q.

I'm sorry I cannot give you

But we

Sometimes, you

I think he's okay as he

Did you ever experience any difficulty in

Not -- not much, as we have case

Was -- did you ever -- can you recall any

NaderiJ

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

Document 277-4

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Page 79 of 209 64

1

11:41:00

1 confrontational with you or with anyone else?

2

11:41:05

2

3

11:41:08

3 getting emotional with somebody else, you know, in

4

11:41:12

4 the meeting, conference or what.

5

11:41:17

5 with me is -- that's --

6

11:41:22

6

7

11:41:25

7 was no particular instance that stands out to you?

8

11:41:29

8

A.

Nothing with me, no.

9

11:41:30

9

Q.

Okay.

A.

Q.

Well, each of us may have seen somebody

Okay.

Nothing special

So as far as you can recollect, there

Did you find interacting with

10

11:41:37 10 Dr. Jadwin unpleasant in any way?

11

11:41:45 11

12

11:41:48 12 characterize it the same as others that, again, you

13

11:41:52 13 deal with attorneys who maybe not like the discussion

14

11:41:56 14 you have with other attorney, but next time you get

15

11:41:59 15 to see each other, then it's okay, is -- like that.

16

11:42:02 16 But those are just the usual routine things, nothing

17

11:42:07 17 specific that, you know, we go head to head or fist

18

11:42:12 18 to fist or something like that, just more

19

11:42:15 19 professional.

20

11:42:16 20

21

11:42:19 21 certain physicians at KMC who are arrogant?

22

11:42:24 22

23

11:42:26 23 as arrogant, as that's -- so I -- different

24

11:42:33 24 personality, but I don't characterize, you know,

25

11:42:38 25 whatever personality.

A.

Q.

A.

I don't recall any instance, but I

Okay.

Well, would you say that there are

Again, I don't like to characterize anybody

Because if -- if I want to say

NaderiJ

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

Document 277-4

Filed 12/01/2008

Page 80 of 209 75

1

11:58:20

1 know, what you're doing and what you're -- well,

2

11:58:22

2 nobody is perfect.

3

11:58:27

3 are, you have your strengths in certain part and

4

11:58:31

4 weakness in certain part, and as honest you are, I

5

11:58:35

5 know this, but I don't know this.

6

11:58:37

6 do, I'm willing to work on it, and then I learn it

7

11:58:39

7 and so on.

8

11:58:42

8 what we do.

9

11:58:46

9 may do better because of personality, some may do

No matter how good lawyer you

But this is what I

This is all we need to do, and this is And I think we all try to do that.

Some

10

11:58:49 10 better and go along, and some may not because of

11

11:58:51 11 personality.

12

11:58:54 12 individual, and this is why we are characterizing,

13

11:58:58 13 characterizing in this society, is what they know us.

14

11:59:00 14

15

11:59:03 15 Dr. Jadwin's ability to get along with people?

16

11:59:07 16

A.

He know --

17

11:59:09 17

Q.

Let me finish.

18

11:59:10 18 Dr. Jadwin's ability to get along with people was any

19

11:59:14 19 worse than any other people?

20

11:59:15 20

21

11:59:18 21 problem with Dr. Jadwin, but I don't know about

22

11:59:21 22 others.

23

11:59:24 23 report; the referring physician will get the result

24

11:59:27 24 of his report.

25

11:59:31 25 how much they believe him or didn't believe him or

Q.

A.

And this is perfectly normal for each

So in the case of Dr. Jadwin, did you see

Did you notice that

Between us, because I didn't have any

And also I don't get the end result of his

And I don't know how good, bad, or

NaderiJ

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

Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

159 Page 81 of 209

ss. 3 4

5

I,

Sandra L.

Edmonson,

a Certified Shorthand

6

Reporter in the State of California, holding Certificate

7

No.

8

witness named in the foregoing deposition,

9

duly sworn;

that said deposition was taken Thursday,

10

December 6,

2007,

11

first page hereof.

12

7704,

do hereby certify that JAVAD NADERI,

M.D.,

the

was by me

at the time and place set forth on the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision;

16

transcript of the testimony given by the witness.

17

that the foregoing is a true and correct

I further certify that I am neither counsel for

18

nor in any way related to any party to said action,

19

in any way interested in the result or outcome thereof.

20 21 22 23

Dated this 20th day of December, Bakersfield,

2007,

nor

at

California.

~ ~ * 7704 CQy"(

S r a ~ons

;o~

24 25 II

WOOD & RANDALL (800) 322-4595 i

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

Document 277-4

Filed 12/01/2008

Page 82 of 209

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

EXHIBIT 42

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

47

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

RAVI PATEL, M.D.

17

Thursday, December 6, 2007

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

PatelR

Page 83 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 84 of 209 16

1

17:10:03

1 on other things in the cancer committee.

2

17:10:04

2

3

17:10:09

3 Dr. Jadwin fairly well, then, on a personal level?

4

17:10:17

4

5

17:10:20

5 in the cancer committee, and that was my extent of

6

17:10:22

6 knowing him.

7

17:10:23

7

Q.

Okay.

8

17:10:27

8

A.

Now, if by "personal" meaning, you know, I

9

17:10:30

9 never had any -- we never socialized or went out or

Q.

A.

Okay.

So would you say that you knew

I can -- I knew him enough to be, you know,

Did you --

10

17:10:34 10 met after the cancer committee to discuss a variety

11

17:10:36 11 of things.

12

17:10:39 12 cancer committee or any issues related to that, I

13

17:10:42 13 would make a phone call to him sometimes to discuss,

14

17:10:44 14 you know, what we need to discuss on this particular

15

17:10:47 15 item or whether he had any, you know, comments on a

16

17:10:51 16 particular issue.

17

17:10:51 17

18

17:10:54 18 with Dr. Jadwin to be unpleasant in any way?

19

17:10:57 19

A.

No.

20

17:11:00 20

Q.

During the time you were the chair of the

21

17:11:04 21 cancer committee, can you estimate how many times

22

17:11:06 22 Dr. Jadwin gave a presentation at the tumor board?

23

17:11:11 23

24

17:11:13 24 committee was the meeting where the cancer committee

25

17:11:16 25 members met to oversee the cancer program, and the

Q.

A.

If there was an issue related to the

Did you ever find any of your interactions

My personal interactions were not.

There's two separate things:

PatelR

The cancer

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

Document 277-4

Filed 12/01/2008

Page 85 of 209 24

1

17:20:05

1 fact that it was brought to me -- to my attention

2

17:20:08

2 particularly because I was the cancer committee

3

17:20:10

3 chairman, that, you know, look, can we speak to

4

17:20:14

4 Dr. Jadwin because, you know, time runs out.

5

17:20:17

5 think that, you know, it was not something that, you

6

17:20:20

6 know, Dr. Jadwin is doing this bad thing and let's

7

17:20:23

7 shake him up, and, you know, we need to talk to him.

8

17:20:25

8 It was just a comment that, you know, look, the time

9

17:20:28

9 is running out, other people don't get enough time to

And I

10

17:20:31 10 discuss it; can we speak to Dr. Jadwin to cut it down

11

17:20:34 11 or whatever.

12

17:20:36 12 really runs the cancer conference was Dr. McBride,

13

17:20:40 13 and so I felt that, you know, the purpose, this issue

14

17:20:44 14 needs to be brought up by Dr. McBride, who is the

15

17:20:48 15 person normally running the conference, in charge of

16

17:20:51 16 the conference.

17

17:20:51 17

18

17:20:57 18 recall the sequence of events that happened at the

19

17:21:05 19 conference in question?

20

17:21:08 20 recall whether the resident presenter spoke first or

21

17:21:12 21 second?

22

17:21:12 22

23

17:21:16 23 the sequence would be always the same.

24

17:21:19 24 would present first; then the imaging would be

25

17:21:24 25 presented, that means the X-ray data would be

Q.

A.

Okay.

And I said, Okay, well, the person who

At Dr. Jadwin's presentation, do you

Oh, yes.

I mean, for example, do you

The resident would have spoken --

PatelR

The resident

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

Document 277-4

Filed 12/01/2008

Page 86 of 209 38

1

17:50:06

1 Is that acceptable to you?

2

17:50:07

2

A.

Can you repeat that, please.

3

17:50:08

3

Q.

When I refer to IPR, I'm referring to

4

17:50:11

4 suggested policy by Dr. Jadwin of having outside

5

17:50:15

5 pathology reports by outside experts reviewed by the

6

17:50:15

6 KMC pathology department.

7

17:50:18

7

A.

I got it.

8

17:50:21

8

Q.

Okay.

9

17:50:22

9

A.

I got it.

10

17:50:22 10

Q.

So I'll refer to that as IPR.

11

17:50:25 11

A.

Yes.

12

17:50:26 12

Q.

Okay.

13

17:50:27 13 discussed IPR with Dr. Jadwin?

14

17:50:30 14

15

17:50:32 15 very well because of the fact that it was presented

16

17:50:35 16 as a possibly, as far as I can recall, an agenda item

17

17:50:40 17 in the cancer committee, that outside would be

18

17:50:46 18 reviewed by other pathologists or any experts outside

19

17:50:50 19 of the hospital needs to be reviewed within the

20

17:50:52 20 hospital.

21

17:50:57 21 appropriate and useful, and I supported Dr. Jadwin

22

17:51:01 22 for that.

23

17:51:01 23

24

17:51:06 24 would improve patient quality care to have IPR at

25

17:51:10 25 KMC?

A.

Q.

Do you recall when you first

No, I don't, but I do remember that issue

And I do feel that that policy was

Okay.

Do you feel that there's a -- that it

PatelR

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

Document 277-4

Filed 12/01/2008

Page 87 of 209 41

1

17:54:04

1 pathology diagnosis, could that cause to a patient

2

17:54:10

2 fatality at KMC?

3

17:54:11

3

4

17:54:15

4 correct, it can potentially produce a problem.

5

17:54:17

5

6

17:54:24

6 a -- of a mistaken pathology diagnosis causing a

7

17:54:29

7 patient mortality?

8

17:54:34

8

9

17:54:36

9 but it would be very small.

A.

Q.

A.

It can.

If the pathology diagnosis is not

How would you rate the probability of -- of

From a probability standpoint, I'm not sure, But it could be -- you

10

17:54:39 10 know, it could affect the outcome of the patient.

11

17:54:41 11

12

17:54:47 12 a mistaken pathology diagnosis caused a patient

13

17:54:51 13 death?

14

17:54:58 14 experience?

15

17:54:58 15

16

17:55:10 16 numbers, the numbers could be very different, but it

17

17:55:14 17 can happen.

18

17:55:14 18

19

17:55:21 19 increase the chance of having an appropriate

20

17:55:23 20 treatment plan?

21

17:55:24 21

A.

Yes.

22

17:55:24 22

Q.

Okay.

23

17:55:29 23 that outside experts, such as USC and Stanford, could

24

17:55:34 24 issue mistaken pathology diagnoses on tissue samples

25

17:55:41 25 that have been referred to them by KMC?

Q.

A.

Q.

Okay.

Are you aware of any instances where

Not just at KMC, but anywhere in your

Yes.

Okay.

Now, you know, if you look at the

Do you believe that having IPR can

Do you have any reason to believe

PatelR

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

Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

86 Page 88 of 209

ss. 3

4

I,

5

Sandra L. Edmonson,

a Certified Shorthand

6

Reporter in the State of California, holding Certificate

7

No.

8

witness named in the foregoing deposition,

9

duly sworn; that said deposition was taken Thursday,

7704, do hereby certify that RAVI PATEL, M.D.,

10

December 6,

11

first page hereof.

12

the

was by me

2007, at the time and place set forth on the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I further certify that I am neither counsel for

18

nor in any way related to any party to said action, nor

19

in any way interested in the result or outcome thereof.

20 21

Dated this 20th day of December, Bakersfield, California.

22 23 24 25

WOOD & RANDALL (800) 322-4595

2007, at

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

Document 277-4

Filed 12/01/2008

Page 89 of 209

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

EXHIBIT 43

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

48

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

Document 277-4

Filed 12/01/2008

1

1

UNITED STATES DISTRICT COURT

2

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

3

---------

4

4

DAVID F. JADWIN, D.O.,

Page 90 of 209 1

) Case No. 1:07-cv-00026-OWW-TAG )

5

5

Plaintiff,

) )

6

6

vs.

) )

7

7

COUNTY OF KERN; et al.

) )

8

8

Defendants.

)

_________________________) 9

9

10

10

11

11

12

12

13

13

14

14

OF

15

15

ARLENE BARBARA RAMOS-ANINION

16

16

Friday, August 15, 2008

17

17

Bakersfield, California

18

18

19

19

20

20

21

21

22

22

VIDEOTAPED DEPOSITION

Reported by:

Cindee L. LeFevre, CSR No. 7974

23 24

23

25 26

24

27 28

25

RamosA1

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

1 2 3 4

09:54:02 09:54:05 09:54:08 not so

Document 277-4

Filed 12/01/2008

Page 91 of 209 47

1 2 3 4

these one-on-one meetings with Mr. Bryan less frequently than other chairs were with Mr. Bryan? A. I do not believe so. Q. Your -- are you certain of that, or you are

5

certain?

5 09:54:11 6 7 8

09:54:12 6 basis, so 09:54:14 7 other

A.

They would all be scheduled on a regular

I don't believe this happened any less often than any

9 09:54:20

8

chairs.

09:54:21 9 during 09:54:24 10 09:54:27 11 hallway,

Q.

10 11 12 13

How often did you interact with Dr. Jadwin

your tenure at KMC? A. Well, you know, if I would see him in the

14 15 16

09:54:30 12 call 09:54:33 13 wouldn't

I would interact with him.

09:54:36 14 do 09:54:41 15 09:54:43 16 Jadwin

say a daily basis, maybe a weekly basis, with him as I

09:54:46 17

unpleasant?

09:54:47 18

A.

No.

09:54:48 19

Q.

Did you like Dr. Jadwin?

20 21 22

A. Q. A.

I did. Why did you like Dr. Jadwin? He was very -- always cordial to me.

him.

He would call or I would

We didn't interact all the time.

You know, I

17 18 19 20

all the chairs. Q. Okay.

And were your interactions with Dr.

21 22 23 24 25 26

never

27

well.

28

was

I -- I

23

had any problems with him.

We always got along really

24

I believe it was because he was From New Jersey and I

25

from New Jersey.

So I think we had a little -- a little

RamosA1

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

1 2 3 4

Document 277-4

Filed 12/01/2008

Page 92 of 209 48

1 2 3 4

bond over Q. A. Q.

09:55:16

5

temper?

09:55:17

6

A.

I never did witness anything like that.

09:55:19

7

Q.

Did you ever witness Dr. Jadwin threatening

09:55:23

8

09:55:25

9

A.

No, I did not.

09:55:28 10

Q.

Okay.

09:55:07 09:55:10 09:55:12 his

there. I am New York. Almost counts. Exactly. Did -- did you ever witness Dr. Jadwin losing

5 6 7 8 physical violence to anybody?

9 10 Well, I should -- let me rephrase those

11 09:55:31 11

questions.

12 09:55:31 12

Were you ever aware of any instances where Dr.

13 09:55:34 13

Jadwin became angry with people?

14 09:55:36 14

A.

I had heard of a situation, physician and

15 16 17 18 19 20 21 22 23

09:55:38 not a 09:55:41 09:55:43 09:55:43 09:55:44

15

physician, but that's hearsay, and I -- I don't -- I'm

16 17 18 19 20 21 22

hearsay kind of person. Q. Okay. A. I like -Q. So you heard it through the grapevine, and you don't know whether it is to be believed or not? A. That is correct. Q. Okay. And are you aware whether Dr. Jadwin

23

ever made physical threats against anybody else?

had 24 25 26 27 28

24

A.

No.

25

Q.

Are you aware of whether Dr. Jadwin ever acted

RamosA1

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

1 2 3

09:56:03 09:56:07 Jadwin's

Document 277-4

Filed 12/01/2008

Page 93 of 209 49

1 2 3

inappropriately with anybody? A. No. Q. Do you -- are you familiar with what Dr.

4

reputation was at the hospital?

4 09:56:11 5 6 7 8 9 10 11

09:56:12 5 they 09:56:16 6 09:56:19 7 09:56:21 8 09:56:24 9 09:56:25 10 any

A.

Not really, other than -- I don't know how

felt about him. I have no idea. Q. Do you know what his reputation was with the support staff at Kern Medical Center? A. No. Q. You didn't hear anything -- you didn't hear

12 09:56:30 11

negative things about Dr. Jadwin in general, did you?

13 09:56:33 12

A.

No.

09:56:33 13

Q.

Have you ever witnessed any kind of angry

14 15 09:56:36 14

interaction -- well, let me strike that.

16 09:56:38 15

Are you aware of any angry confrontations

17 09:56:41 16

occurring between any core physicians at Kern Medical

09:56:44 17

Center?

18 19 20 21 22

09:56:46 18 A. anything 09:56:49 19 factual. 20 Q. confrontations

Again, I've heard things, but don't know So nothing I can honestly say that I know. Okay. Have you witnessed any angry

23 21 24 25 26

between any other core physicians at Kern Medical

Center? 22 23

A. Q.

No. Have you witnessed any -- any confrontations

at 27 24

all at Kern Medical Center?

28 25

A.

No.

RamosA1

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

1 2 3 4

Document 277-4

Filed 12/01/2008

Page 94 of 209 55

1 2 3 4

Q. And were you aware of anyone else feeling threatened by Dr. Jadwin's physical size? A. No. Q. So Dr. Jadwin didn't walk around using his

10:03:20

5

a way to kind of intimidate people in any way?

10:03:23

6

A.

Never -- never in front of me.

10:03:25 Jadwin's 10:03:28 10:03:32 you

7

Q.

What was -- how would you describe Dr.

10:03:12 10:03:16 10:03:16 size as

5 6 7 8 9 10

8 9

demeanor? Was he, you know -- was he walking around strutting with his chest out all the time or -- would

11 12 13 14

10:03:35 10 describe 10:03:36 11 10:03:37 12 professional

just try to put it in your own words how you would

10:03:39 13 never 10:03:43 14 I

walking down the hallway.

10:03:46 that 10:03:49 10:03:50 10:03:53 10:03:53

15

didn't see him being anything other than the physician

16 17 18 19 20 21 22

he was. Q. Jadwin? A. Q. A. Q.

his demeanor. A. I always thought Dr. Jadwin was very

15 16 17

Whenever I would see him, I

thought him different than any other person.

You know,

18 19 20 21 22 23 24 25 26

Did you ever feel physically threatened by Dr. No. Did you ever feel scared of Dr. Jadwin? No. Did you ever hear of anyone else being

terrified 27

23 24 25

28

of Dr. Jadwin? A. No. Q. Can you imagine any reason why anybody would

be

RamosA1

Case 1:07-cv-00026-OWW-TAG BARBARA RAMOS-ANINION

Document 277-4

Filed 12/01/2008

Page 95 of 209 08-15-08

Page 119 1

STATE OF CALIFORNIA

2

COUNTY OF KERN

ss.

3

4

I, Cindee L. LeFevre, a Certified Shorthand

5

Reporter in the State of California, holding

6

certification No. 7974, do hereby certify that

7

ARLENE BARBARA RAMOS-ANINION, the witness named in the

8

foregoing deposition, was by me duly sworn; that said

9

deposition was taken Friday, August 15, 2008, at the

10 11

time and place set forth on the first page hereof. That upon the taking of the deposition, the

12

words of the witness were written down by me in stenotypy

13

and thereafter transcribed by computer under my supervision;

14

that the foregoing is a true and correct transcript of the

15

testimony given by the witness.

16

I further certify that I am neither counsel for

17

nor in any way related to any party to said action, nor in

18

any way interested in the result or outcome thereof.

19 20

Dated this 9th day of September, 2008, at Bakersfield, California.

21 22 23 24

.

~L)~

Cindee L. LeFevr , CSR No. 7974

25

VS.

RANDALL

(800)

COUNTY 322-4595

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

Document 277-4

Filed 12/01/2008

Page 96 of 209

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

EXHIBIT 44

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

49

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

EDWARD WILLIAM TAYLOR, M.D.

17

Wednesday, December 5, 2007

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

TaylorE1

Page 97 of 209 1

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

A.

Document 277-4

Filed 12/01/2008

Page 98 of 209 88

1

18:07:32

1

Okay?

2

18:07:33

2

3

18:07:34

3 time like that is confabulating.

4

18:07:38

4 confabulate, then you can say anything in the world

5

18:07:42

5 is possible.

6

18:07:43

6

7

18:07:46

7 partner would have to take care of us because I'm

8

18:07:48

8 here, but that's kind of not realistic, is it?

9

18:07:52

9

Somebody that makes up a word like that -- a So if you want to

Okay?

A plane could land in here right now, and my

Q.

Okay.

Well, how long do you estimate it

10

18:07:54 10 took for Dr. Jadwin to present his portion of

11

18:07:59 11 Presentation B of the October oncology conference?

12

18:08:02 12

13

18:08:04 13 This is now the sixth time.

14

18:08:05 14

15

18:08:06 15 BY MR. LEE:

16

18:08:06 16

Q.

Don't know.

17

18:08:07 17

A.

Do you want me to speculate?

18

18:08:09 18 said no.

19

18:08:12 19

Q.

No.

20

18:08:13 20

A.

Estimate?

21

18:08:14 21

22

18:08:16 22 20 minutes.

23

18:08:16 23

24

18:08:23 24 paragraph you say, "In general I get along fine with

25

18:08:25 25 Dr. Jadwin."

MR. WASSER:

THE WITNESS:

I don't know.

You've already

We're going in a circle. I want you to estimate.

Okay.

Q.

You've asked and answered that.

Okay.

I would estimate that his talk took

Now, at the very end of the last

TaylorE1

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

Document 277-4

Filed 12/01/2008

Page 99 of 209 89

1

18:08:26

1

How would you -- would you say that that's a

2

18:08:28

2 pretty accurate assessment of your --

3

18:08:31

3

4

18:08:33

4 way.

5

18:08:38

5 peripherally knew about, like I said before, some of

6

18:08:41

6 the FNA arguments, and afterwards I realized there's

7

18:08:45

7 something going on between him and Roy.

8

18:08:48

8 after that, I really didn't have any problem with

9

18:08:50

9 him.

A.

Yeah.

And I really -- I still feel that

I really didn't -- you know, I -- I very

But even

We were cordial in the halls, and he called me

10

18:08:54 10 with the path reports and told me.

11

18:08:58 11 I completely believe that.

12

18:09:00 12

13

18:09:03 13 many problems in your interactions with Dr. Jadwin

14

18:09:06 14 before October 12, 2005?

15

18:09:07 15

A.

No.

16

18:09:09 16

Q.

How many --

17

18:09:10 17

A.

And I had no problem with my interaction

18

18:09:12 18 with him then because I didn't.

19

18:09:16 19 something that I thought was inappropriate, and I

20

18:09:18 20 commented on it to try to help make things better.

21

18:09:25 21 Nothing personal.

22

18:09:25 22

23

18:09:30 23 Dr. Jadwin prior to -- well, let's just say for the

24

18:09:33 24 one-year period before October 12 of 2005?

25

18:09:38 25

Q.

Q.

A.

Okay.

I really -- yes,

And so basically do you recall having

I just observed

How many interactions did you have with

Probably dozens.

TaylorE1

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

Document 277-4

Filed 12/01/2008

Page 100 of 209 90

1

18:09:39

1

Q.

So --

2

18:09:40

2

A.

Some are shorter than others.

3

18:09:48

3

4

18:09:50

4 is covering me.

5

18:09:55

5 people to tell them not to page me.

6

18:09:57

6

7

18:10:02

7 understood your answer, you're saying that there was

8

18:10:05

8 a pretty significant -- you almost saw him on a,

9

18:10:07

9 what, weekly basis then?

There's people that don't know somebody else

Q.

A.

Okay.

Excuse me.

I would have to call 100

10

18:10:09 10

11

18:10:11 11 the hall, saying hi.

12

18:10:14 12 faculty practice plan committee; so I would see him

13

18:10:18 13 every -- once a month, and then quite a few times

14

18:10:21 14 over the phone with frozen sections or -- or -- or

15

18:10:24 15 path reports that he would call me quite a few times.

16

18:10:27 16

17

18:10:30 17 raising his voice with you?

18

18:10:31 18

A.

No.

19

18:10:31 19

Q.

Do you recall him ever being

20

18:10:33 20 confrontation -- confrontational with you?

21

18:10:35 21

A.

No.

22

18:10:35 22

Q.

Okay.

23

18:10:42 23

A.

The only arrogance I felt from him was at

24

18:10:45 24 this conference.

25

18:10:48 25 from him.

Q.

Yeah.

The question was so -- as I

Okay.

A lot of it would be just passing in We were on, I think, the

So do you recall Dr. Jadwin ever

Would you say Dr. Jadwin is arrogant?

Other than that, I never got that

TaylorE1

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

Document 277-4

Filed 12/01/2008

Page 101 of 209 93

1

18:12:27

1 doctor that you consider to be arrogant at KMC?

2

18:12:31

2

3

18:12:33

3 Dr. Jadwin was arrogant and so I'm not even part of

4

18:12:37

4 that group that thinks he's arrogant nor part of that

5

18:12:40

5 lawsuit.

6

18:12:43

6 has nothing to do with this because I don't think

7

18:12:46

7 Dr. Jadwin's arrogant.

8

18:12:48

8

9

18:12:56

9 you -- I don't know if you are aware of this, but you

A.

Q.

It's not relevant because I never thought

So me thinking somebody else is arrogant

Okay.

Dr. Taylor, I'm just going to remind

10

18:12:58 10 are here in regard to a lawsuit, and we have a right

11

18:13:02 11 to answers to our questions.

12

18:13:06 12 answer a question, you will be -- well, we can, at

13

18:13:10 13 our option, bring a motion to the judge and request

14

18:13:12 14 that you be sanctioned for not answering a question

15

18:13:15 15 to which we're entitled to an answer.

16

18:13:19 16 you to understand that.

17

18:13:20 17

A.

Okay.

18

18:13:26 18

Q.

And I just want to add that it's not --

19

18:13:28 19 you're actually not in a position to say what's

20

18:13:31 20 relevant or not relevant in this deposition.

21

18:13:32 21

22

18:13:36 22 with attorneys and depositions, I've never been asked

23

18:13:40 23 something very personal like that that -- and I --

24

18:13:43 24 and I really think that -- that that is just an

25

18:13:49 25 absolutely unfair question to ask.

A.

I know I'm not.

And if you refuse to

I just want

I'm also -- in all my time

TaylorE1

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

Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

128 Page 102 of 209

Filed 12/01/2008

ss. 3 4

5

I,

Sandra L. Edmonson, a Certified Shorthand

6

Reporter in the State of California,

holding

7

Certificate No.

8

EDWARD WILLIAM TAYLOR, M.D.,

9

foregoing deposition, was by me duly sworn; that said

7704, do hereby certify that the witness named in the

10

deposition was taken Wednesday,

11

time and place set forth on the first page hereof.

12

December 5,

2007,

That upon the taking of the deposition,

at the

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I further certify that I am neither counsel for

18

nor in any way related to any party to said action, nor

19

in any way interested in the result or outcome thereof.

20 21

Dated this 20th day of December, Bakersfield, California.

22 23

2007, at

S

~J3 GJ ~J~--cA. ~ ra L. Edmonson, CSR No. 7704

24 25

WOOD & RANDALL (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 103 of 209

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

EXHIBIT 45

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

50

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

CHARLES JOSEPH WROBEL, M.D.

17

Thursday, December 6, 2007

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

WrobelJ

Page 104 of 209 1

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

Document 277-4

Filed 12/01/2008

1

08:12:09

1

A.

-- is that correct?

2

08:12:10

2

Q.

Well, actually, let's see.

3

08:12:12

3

A.

Calendar years.

4

08:12:13

4

Q.

Let's say five years.

5

08:12:16

5

A.

Probably ten times.

6

08:12:18

6

Q.

Ten times.

7

08:12:26

7 significant with Dr. Jadwin or --

8

08:12:28

8

A.

No.

9

08:12:28

9

Q.

No.

Page 105 of 209 12

Yeah, that's correct.

And were those interactions very

So were they really more in the nature

10

08:12:31 10 of just saying hello in the hallway?

11

08:12:33 11

12

08:12:36 12 specimen which happened, I believe, probably twice a

13

08:12:39 13 year.

14

08:12:39 14

Q.

I'm sorry?

15

08:12:40 15

A.

It was to ask about a pathology specimen,

16

08:12:44 16 maybe twice a year, my recollection.

17

08:12:45 17

18

08:12:48 18 work-related then, correct?

19

08:12:49 19

A.

That is correct.

20

08:12:49 20

Q.

Okay.

21

08:12:52 21 arrogant?

22

08:12:54 22

A.

I don't remember.

23

08:12:54 23

Q.

Well, we're entitled to your best

24

08:12:58 24 recollection.

25

08:13:01 25 arrogant at any time with you?

A.

Q.

No, they were to ask about a pathology

Okay.

So the conversations were strictly

Did Dr. Jadwin ever strike you as

Is your best recollection that he was

WrobelJ

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

A.

Document 277-4

Filed 12/01/2008

Page 106 of 209 13

1

08:13:02

1

2

08:13:05

2 would say no.

3

08:13:06

3

4

08:13:10

4 be emotional or confrontational?

5

08:13:12

5

6

08:13:14

6 that we had, I don't think so.

7

08:13:16

7

Q.

So your best recollection is no, correct?

8

08:13:19

8

A.

That is correct.

9

08:13:19

9

Q.

Okay.

Q.

On the basis of my limited interactions, I

A.

Okay.

Did Dr. Jadwin ever appear to you to

On the basis of the ten short interactions

Did you have -- do you have any

10

08:13:24 10 reason to believe that Dr. Jadwin is arrogant or was

11

08:13:28 11 arrogant?

12

08:13:29 12

MR. WASSER:

13

08:13:30 13

THE WITNESS:

14

08:13:32 14

MR. LEE:

15

08:13:34 15 believe.

16

08:13:35 16

17

08:13:36 17 Dr. Jadwin's emotional and confrontational?

18

08:13:39 18

A.

No.

19

08:13:39 19

Q.

Okay.

20

08:13:47 20 during your time at KMC?

21

08:13:48 21

A.

No.

22

08:13:48 22

Q.

So since -- I'm sorry.

23

08:13:53 23 at KMC, 19 --

24

08:13:54 24

A.

'91.

25

08:13:54 25

Q.

-- 91?

Q.

You just asked him that. No.

I'm asking if he has any reason to

Do you have any reason to believe that

Have you taken any leaves of absence

WrobelJ

When did you begin

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

Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

46 Page 107 of 209

Filed 12/01/2008

ss. 3 4

5

Sandra L.

I,

Edmonson,

a Certified Shorthand

6

Reporter in the State of California,

7

Certificate No.

8

CHARLES JOSEPH WROBEL, M.D.,

9

foregoing deposition,

7704,

holding

do hereby certify that the witness named in the

was by me duly sworn; that said

10

deposition was taken Thursday,

11

time and place set forth on the first page hereof.

12

December 6,

2007,

at the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision;

16

transcript of the testimony given by the witness.

17

I

that the foregoing is a true and correct

further certify that I am neither counsel for

18

nor in any way related to any party to said action,

19

in any way interested in the result or outcome thereof.

20 21

Dated this 20th day of December, Bakersfield,

California.

22 23 24 25

WOOD & RANDALL (800) 322-4595

2007,

at

nor

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

Document 277-4

Filed 12/01/2008

Page 108 of 209

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

EXHIBIT 46

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

51

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

TAI YOO, M.D.

17

Thursday, August 21, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

YooT

Page 109 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 110 of 209 9

1

13:13:45

1

Q.

Okay.

2

13:13:50

2

A.

Other than my vitamins this morning.

3

13:13:52

3

Q.

Okay.

4

13:13:53

4

A.

Yes.

5

13:13:53

5

Q.

That will not affect your testimony today,

6

13:13:55

6 right?

7

13:13:56

7

A.

Right.

8

13:13:56

8

Q.

Okay.

9

13:13:59

9

Thank you.

What is your current title at Kern Medical

10

13:14:03 10 Center?

11

13:14:03 11

12

13:14:07 12 Kern Medical Center and the Kern County Mental

13

13:14:12 13 Health, and also residency program director for the

14

13:14:15 14 UCLA Kern psychiatry residency program, and the

15

13:14:22 15 professor and the vice chairman at UCLA psychiatry

16

13:14:25 16 department.

17

13:14:25 17

18

13:14:27 18

19

13:14:29 19 witness put on the microphone.

20

13:14:32 20

21

13:14:34 21 microphone on.

22

13:14:35 22

THE WITNESS:

23

13:14:36 23

THE VIDEOGRAPHER:

24

13:14:37 24 BY MR. LEE:

25

13:14:46 25

A.

Q.

I am the joint chairman of psychiatry at

Okay. THE VIDEOGRAPHER:

MR. LEE:

Q.

Okay.

Counsel, can we have the

I'm sorry.

I forgot to instruct. Can you put this

Oh. Thank you.

Doctor, when did you begin your

YooT

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

Document 277-4

Filed 12/01/2008

Page 111 of 209 10

1

13:14:48

1 employment with the County of Kern?

2

13:14:49

2

A.

August the 1st, 2001.

3

13:14:52

3

Q.

So you've been employed by the county for

4

13:14:56

4 almost seven years now?

5

13:14:58

5

A.

Seven years, yeah.

6

13:14:59

6

Q.

Okay.

7

13:15:01

7 with the County of Kern you were -- you were hired as

8

13:15:04

8 a chair of psychiatry?

9

13:15:06

9

A.

Yeah.

10

13:15:06 10

Q.

Okay.

11

13:15:07 11

A.

First joint chairman for both Kern Medical

12

13:15:13 12 Center and the county mental health.

13

13:15:15 13

14

13:15:22 14 of the Kern Medical Center --

15

13:15:24 15

A.

Yes.

16

13:15:24 16

Q.

-- and -- yes?

17

13:15:27 17

A.

Uh-huh.

18

13:15:27 18

Q.

Okay.

19

13:15:30 19

A.

Yes.

20

13:15:30 20

Q.

Okay.

21

13:15:33 21 you have with Dr. Jadwin during your tenure or during

22

13:15:37 22 his tenure at Kern Medical Center?

23

13:15:40 23

24

13:15:42 24 started soon after I started, and we -- as chair of

25

13:15:53 25 different departments, we had chairs' council

Q.

A.

And when you first began employment

Oh, okay.

And are you still a joint chair

Do you know Dr. Jadwin?

Did you -- how many interactions did

I don't know the exact date.

YooT

I think he

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1

13:15:58

1 once-a-month --

2

13:15:59

2

Q.

I see.

3

13:15:59

3

A.

-- meeting.

4

13:16:04

4 And since he is -- he was the chairman of the

5

13:16:08

5 pathology department, I had a few discussions about

6

13:16:11

6 some lab testing component for our psychiatry faculty

7

13:16:18

7 members.

8

13:16:18

8

9

13:16:21

9 council meetings?

Q.

Okay.

So we had that interaction.

So you saw him once a month at chair

10

13:16:22 10

A.

Right.

11

13:16:22 11

Q.

And then outside of the chair council you

12

13:16:24 12 saw him sporadically?

13

13:16:26 13

14

13:16:31 14 gathering once in a while when the previous chief

15

13:16:36 15 medical officer left.

16

13:16:39 16

Q.

Dr. Kolb?

17

13:16:40 17

A.

Yeah, Dr. Kolb.

18

13:16:45 18 Bryan's house, and I think another time we were

19

13:16:49 19 together at Dr. Martin's house.

20

13:16:52 20

21

13:16:58 21 your interactions with Dr. Jadwin?

22

13:17:01 22

23

13:17:07 23 don't think we had any close social interactions.

24

13:17:14 24 And he doesn't have any residency program, and none

25

13:17:19 25 of our residents, they have to go through his

A.

Q.

A.

Sporadically for -- we had some social

We gathered at Peter

How were your -- how would you characterize

Mostly professional interactions, and I

YooT

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1

13:17:22

1 service, other than some care coordination issues in

2

13:17:27

2 the lab testing.

3

13:17:31

3 testing for our patients in emergency room.

4

13:17:39

4

5

13:17:43

5 interaction with Dr. Jadwin at any time?

6

13:17:46

6

A.

No.

7

13:17:46

7

Q.

Okay.

8

13:17:51

8

A.

Well, I learned he was at the same hospital

9

13:17:56

9 working in Michigan, I was chairman of Henry Ford

Q.

Okay.

I wanted him to have some drug

Did you ever have an unpleasant

Did you like Dr. Jadwin?

10

13:18:02 10 Hospital for quite some time, and overall I was with

11

13:18:08 11 Henry Ford about 23 or -4 years, and the last eight

12

13:18:18 12 to ten years I was doing outside joint venture work

13

13:18:23 13 between Henry Ford Health System and Emergency Health

14

13:18:29 14 Services as vice president of behavior services.

15

13:18:33 15 while I was out doing those work handling several

16

13:18:40 16 hospitals, he was at Henry Ford Hospital.

17

13:18:44 17 didn't know him, and I knew he was there only when we

18

13:18:50 18 worked together here.

19

13:18:51 19

20

13:18:54 20 Dr. Jadwin at Henry Ford Hospital?

21

13:18:57 21

A.

No.

22

13:18:57 22

Q.

Okay.

23

13:19:04 23 right?

24

13:19:05 24

A.

No reason to dislike.

25

13:19:06 25

Q.

Okay.

Q.

Oh.

So

So I

So did you hear anything about

You don't dislike Dr. Jadwin then,

So as far as you're concerned when

YooT

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1

13:21:13

1 less-than-professional conduct by some residents?

2

13:21:17

2

A.

Uh-huh.

3

13:21:19

3

Q.

Okay.

4

13:21:22

4 question, that was a yes?

5

13:21:24

5

A.

Repeat the question again.

6

13:21:25

6

Q.

Sure.

7

13:21:27

7

8

13:21:30

8 less-than-professional conduct by nurses against

9

13:21:33

9 certain residents, correct?

So that's a yes, correct?

To my last

So what you heard was some complaints of

10

13:21:35 10

A.

Right.

But none necessarily directly what

11

13:21:40 11 you described, F words, like that.

12

13:21:42 12

Q.

Right.

13

13:21:46 13

A.

No.

14

13:21:47 14

Q.

Not even similar?

15

13:21:48 15

A.

Uh-huh.

16

13:21:49 16

Q.

Okay.

17

13:21:57 17 meetings did you witness -- you saw Dr. Jadwin, you

18

13:22:00 18 said, once a month at the chair council meetings?

19

13:22:03 19

A.

Right.

20

13:22:03 20

Q.

Did you ever witness Dr. Jadwin doing

21

13:22:05 21 anything unprofessional or inappropriate in a chair

22

13:22:08 22 council meeting?

23

13:22:11 23

A.

I do not recall.

24

13:22:20 24

Q.

You saw him 12 times a year at the chair

25

13:22:23 25 council meetings, right?

But similar?

But similar?

Now, at any of the chair council

YooT

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1

13:27:58

1

Q.

Okay.

2

13:27:59

2

A.

And I'm responsible for all the medical

3

13:28:03

3 services in psychiatry at both system.

4

13:28:10

4

5

13:28:14

5 spend during working hours at Kern Medical Center?

6

13:28:25

6

7

13:28:32

7 responsibilities.

8

13:28:40

8 any physicians -- full-time physicians to spend

9

13:28:44

9 minimum 40 hours, and we usually spend roughly about

Q.

A.

Okay.

So how much time do you physically

It's fluctuating depending on overall Our county contract stipulates for

10

13:28:52 10 50 or 60 hours plus altogether per week, and I split

11

13:29:00 11 the time between.

12

13:29:02 12

13

13:29:06 13 Medical Center?

14

13:29:07 14

A.

Sometimes more.

15

13:29:07 15

Q.

Sometimes more.

16

13:29:10 16

A.

Yeah, uh-huh.

17

13:29:13 17 full-time job --

18

13:29:14 18

Q.

Right.

19

13:29:14 19

A.

-- when you are responsible for two

20

13:29:16 20 agencies.

21

13:29:16 21

22

13:29:32 22 became ill and just couldn't work because you're sick

23

13:29:36 23 and you need to recover, what would you do?

24

13:29:40 24

25

13:29:49 25 leave and our -- Kern Medical Center or Kern County

Q.

Q.

A.

So you spend 25 to 30 hours a week at Kern

Okay. And it's more than one

So if you had to be absent from -- if you

Then I would take medical leave or sick

YooT

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Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

94 Page 116 of 209

ss.

3 4

Sandra L.

I,

5

Edmonson,

a Certified Shorthand

6

Reporter in the State of California, holding Certificate

7

No.

8

witness named in the foregoing deposition,

9

duly sworn; that said deposition was taken Thursday,

7704,

do hereby certify that TAl YOO, M.D.,

10

August 21,

11

first page hereof.

12

2008,

the

was by me

at the time and place set forth on the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I

further certify that I am neither counsel for

18

nor in any way related to any party to said action,

19

in any way interested in the result or outcome thereof.

20 21

Dated this 4th day of September, Bakersfield,

2008,

at

California.

22 23

Sandra L.

Edmonson,

24 25

WOOD & RANDALL (800) 322-4595

CSR No.

7704

nor

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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

EXHIBIT 47

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

52

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1

1

2

2

METROPOLITAN DIVISION

3

3

---------

4

4

Page 118 of 209 1

SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN

DAVID F. JADWIN, D. O.

) Volume 1 )

5

5

Plaintiff,

) ) Case No. 1:07-CV-00026-OWW-TAG

6

6

) vs.

7

)

7

) COUNTY OF KERN, et. al., )

8

8

) Defendants.

9

9

10

10

11

11

12

12

13

13

14

14

15

15

16

16

17

17

18

18

19

19

20

20

21

21

22

22

)

_________________________)

VIDEOTAPED DEPOSITION OF PHILIP DUTT, M.D. Wednesday, August 20, 2008 Bakersfield, California

Reported by:

Cindee L. LeFevre, CSR No. 7974

23 24

23

25 26

24

27 28

25

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09:28:32 1 director,

A.

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I'm a pathologist, I'm the laboratory

2 09:28:36

2

and the interim Chair of pathology.

09:28:40

3

Q.

You have been interim chair since when?

09:28:46

4

A.

Friday, I believe it was July 14 of 2006.

09:28:52

5

Q.

July 14, 2006?

09:28:54

6

A.

Yes.

09:28:56 7 you 09:28:59 8 09:29:03 9 09:29:04 10 needed

Q.

How did you -- how were you made aware that

3 4 5 6 7 8 9 10 11

were the interim chair of the Department of Pathology at Kern Medical Center? A. There was a meeting in which they said they

12 09:29:08 11

a laboratory director, and they asked me to become a

09:29:13 12

laboratory director.

13 14 09:29:14 13

Q.

Who is they?

09:29:15 14

A.

Irwin Harris, Sandy Chester, and David Hill.

09:29:22 15

Q.

What was this meeting?

09:29:24 16

A.

Pardon me.

09:29:25 17 special 09:29:28 18 09:29:31 19 09:29:32 20 09:29:34 21 09:29:37 22 09:29:40 23 discussed

Q.

You say there was a meeting.

15 16 17 18 19 20 21 22 23 24 25

Was this a

meeting just for you or was this a regularly scheduled meeting? A. It was not a regularly scheduled meeting. Q. So this was a meeting just for the purpose of appointing you director, interim chair? A. That was not the only purpose. We also

26 09:29:43 24 27 28

09:29:48 25

bringing back Dr. Liu as another pathologist. Q.

Dr. Fang Luo Liu?

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09:45:16 Dr.

1

it would cause unnecessary anxiety.

Why did you tell

09:45:20

2

Jadwin that his case was being investigated?

2 3 4 5

09:45:23 3 the 09:45:26 4 pathologist.

A. situation.

I said that -- I think I said it depends on So you might not want to tell the

6 7 8 9

09:45:32 decide 09:45:36 09:45:37 said

5 6 7

Q.

What about Dr. Jadwin's case.

Why did you

to tell him? A. Because he asked to look at the slides, and I

10 11 12 13 14

09:45:41 8 slides to 09:45:46 9 09:45:49 10 09:45:52 11 Dr.

it's going to go for peer review, and I wanted the

09:45:58 12

Shertukde was right, but it could have involved her, it

09:46:02 wanted 09:46:05 09:46:07 09:46:11 09:46:13 09:46:14 09:46:16 review

13

could have involved him.

14 15 16 17 18 19

the slides to be secure. Q. Okay. But Dr. Jadwin was asking for access to those slides. Isn't that what you just said? A. He wanted to see the slides. Q. Did you give him access? A. No. I told him the case was going for peer

be locked up until they were sent for peer review. Q. Locked up from Dr. Jadwin too? A. Not necessarily from him. I mean, I thought

15 16 17 18 19 20 21 22 23

I just wanted the case -- I

24 25 26 27 28

09:46:20 20 09:46:22 21 one of 09:46:24 22 09:46:27 23 originating 09:46:31 24 09:46:34 25 protect

and that was the reason he couldn't have the slides. Q. I don't understand. I thought peer review, the missions was to educate the originating pathologist. Why wouldn't you want to show the slides to the pathologist? That's not part of peer review? A. The purpose of peer review primarily is to

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09:46:37 1 09:46:37 2 09:46:41 3 protecting

patients. Q. I see. So how was locking up the slides preventing or denying Dr. Jadwin access to them

09:46:42

patients?

4 4

5 6 7 8 9 10 11 12

09:46:43 5 purpose 09:46:46 6 09:46:50 7 09:46:52 8 09:46:53 9 09:46:54 10 09:46:57 11 that

A.

I wasn't denying Dr. Jadwin access.

The

was not to -Q. Well, did you give him access to the slides? A. No. Q. Why not? A. Because I wanted the slides to be secure and locked up. Pathologists frequently will lock up slides

13 14 15 16

09:47:02 12 doing. 09:47:07 13 09:47:07 14 legal

might have a legal implication.

09:47:11 15

implication.

09:47:11 16

Q.

What's that legal implication?

09:47:14 17 lawsuit 09:47:17 18 or

A.

Well, if you know there is going to be a

Q. A.

That's what I was

Uh-huh. I was doing it because there was a potential

17 18 19 20 21

about a case or an autopsy, there are certain evidence

22 23 24

09:47:22 19 so 09:47:27 20 trained to

potential evidence that you don't want to get lost, and

09:47:33 21

do in terms of locking up potential evidence.

it's -- I just sort of did it as what I have been

25 26 09:47:36 22

Q.

So you were acting as an attorney not as

27 28

09:47:40 23 09:47:40 24 09:47:42 25

pathologist? A. I did not say that. Q. You said you were looking up evidence with

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09:48:51 09:48:51 said.

1 2

sufficient. MR. WASSER:

09:48:53

3

BY MR. LEE:

09:48:54 was 09:48:57 evidence

4

Q.

5

a possibility of legal liability and you wanted the

09:48:59 have 09:49:03 09:49:16 09:49:18 about

6

locked up.

7 8 9

interfered with that process? A. I'm not sure. Q. Now, what legal liability are you talking

09:49:21 a 09:49:26 09:49:28 09:49:29 lawsuit

10

with regard to case SO6-4131?

11 12 13

letter threatening suit? A. No. Q. So what legal liability was there?

I need to remind you of what he

3 4 5 6

Doctor, the question is how -- you said there

7 8 9 10 11

How would Dr. Jadwin's viewing the slides

12 13 14 15 16

Did the patient send you

What

17 09:49:33 14

was being pending or threatened?

18 19 20 21 22 23 24 25

09:49:35 15 Dr. 09:49:42 16 09:49:48 17 09:49:54 18 09:50:02 19 09:50:05 20 09:50:07 21 liability in

A. Shertukde either he needed an Q. answer? A.

Well, Dr. Jadwin had told me and others that had made a mistake. So it seemed to me that or she was wrong, and, therefore, I thought we outside opinion to see who was right. Okay. So where's the legal liability in that Well, because there's potential legal

26 27 28

09:50:09 09:50:12 there 09:50:16 09:50:18

22 23

terms of an incorrect diagnosis. Q. So whenever a pathologist makes a mistake,

24 25

is legal liability? A. I'm not sure.

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10:07:10 10:07:11 got

1 2

to be too much. Q. It got to be too much.

10:07:15

3

too disappointed in Dr. Jadwin?

10:07:18

4

A.

That was part of it.

10:07:19

5

Q.

What were you disappointed in?

10:07:32 his 10:07:38 10:07:43 pressure

6

A.

Well, he just quit working, and he dumped all

In other words, you

3 4 5 6 7 8 9

7 8

work on Dr. Shertukde and me. Initially, he was pressure -- trying to

10 11 12

10:07:45 9 an 10:07:53 10 take

the medical staff and the administration into giving him

10:07:58 11

a leave of absence.

apology by taking a leave of absence or threatening to

13 14 10:07:59 12

Q.

How do you know that?

10:08:00 13

A.

Because he told me.

10:08:01 absence 10:08:04 10:08:12 10:08:17 upset

Q.

He told you, I'm going to take a leave of

15 16 17 18 19 20

14 15 16 17

to pressure the administration to apologize? A. What he said was I'm going to take a leave of absence. That occurred in the context where he was

21 22 23 24

10:08:20 18 tumor 10:08:25 19 10:08:30 20 take

about a letter he had received regarding the October

10:08:34 give 10:08:37 10:08:39 10:08:41 10:08:43 in

21

a leave absence in order to force the administration to

22 23 24 25

me an apologyIs that what he said? A. He didn't use those exact words. Q. But did he say something to that effect? A. He said I'm going to take a leave of absence

conference, and he kept saying all I want is an apology. Q. So he didn't say the exact words I'm going to

25 26 27 28

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I just needed to inform them.

Page 124 of 209 290

16:31:06 started

1

going.

It initially

16:31:09 and 16:31:14 16:31:17 16:31:20 make

2

out as a hostile work environment, harassment concern,

3 4 5

then, quality concerns came up. Q. Did you submit -- how did you initiate this meeting? Did you send an e-mail to somebody or did you

16:31:24

6

phone calls?

16:31:24

7

A.

No, I talked to Dr. Harris.

16:31:26 8 if 16:31:30 9 16:31:36 10 16:31:40 11 16:31:42 12 16:31:45 13 16:31:46 14 environment

Q.

Okay.

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

And what was decided at that meeting,

anything? A. I just informed Dr. Harris that there were problems and -Q. You mean problems with Dr. Jadwin; right? A. Yes. Q. Dr. Jadwin was creating a hostile work

17 16:31:50 15

and was harassing people?

18 16:31:53 16

A.

That was my concern at the time.

16:31:54 17 harassment 16:31:58 18 16:32:01 19 I

Q.

And at this meeting you discussed his

19 20 21 22

of Vangie Gallegos? A. At the meeting itself?

I discussed complaints

23 16:32:06 20

had received from both Dr. Shertukde and from Vangie.

24 16:32:10 21

Q.

Any other complaints?

16:32:14 some 16:32:17 16:32:19 issue? 16:32:24

A.

And then I was -- at that meeting, I raised

25 26 27 28

22 23 24 25

concerns about the diagnoses. Q. So his competence as a pathologist was at A.

Or that he was issuing certain diagnoses to

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16:40:41

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1

would say, I have to go to Los Angeles or he would have

16:40:44

2

go to the gym.

16:40:49

3

to 2 He made it difficult to talk to him.

3 Q.

So you thought it easier to assign it to the

4

Peer

5

16:40:53

4

6

16:40:53

5

A.

I didn't say that.

7

16:40:55

6

Q.

Then why didn't you keep it in the department?

8

16:40:55

7

A.

Because Dr. Jadwin would avoid conversations.

9

16:40:58

8

Q.

So, therefore, you thought it would be better

Review Committee?

to 10 16:41:01

9

send it to Peer Review Committee?

11 16:41:03 10

A.

I didn't think better.

It was the only option

12

I

13

16:41:05 11

14

16:41:06 12

Q.

You had no other choice?

15

16:41:07 13

A.

Right.

16

16:41:08 14

Q.

Did you discuss your decision to send cases to

17

16:41:13 15

18

16:41:15 16

19

16:41:16 17

20

16:41:21 18

21

16:41:22 19

22

16:41:23 20

23

16:41:27 21

24

16:41:28 22

25

16:41:30 23

had.

peer review with Dr. Jadwin at any point? A.

Well, I mentioned to him the original prostate

case was going to be peer reviewed. Q.

By the Peer Review Committee.

You told him

that? A.

No, by -- at that time, it was going to be

reviewed by an expert. Q.

Within the -- I'm talking about the procedure.

Within the department, according to the Department's

peer 26 16:41:34 24

review proceedings or did you tell him that.

27 28

16:41:36 25

A.

No.

I mean, two of us thought one thing, the

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16:41:40 it

1

other person thought another thing.

So it was obvious

16:41:44

2

was going to go to an outside expert.

16:41:47 Peer 16:41:50 16:41:54 16:41:54 out

3 4 5 6

Review Committees or was this still department peer review? A. It was neither. I mean, I just wanted to find

16:41:59

7

Dr. Epstein's opinion.

16:42:00

8

16:42:02

9

2 3 4 5 6 7

Q.

Okay.

And this is under the auspices of the

8 9 Q.

Okay.

And this is the case where you denied

10 Jadwin, Dr. Jadwin access to the slides?

11 16:42:06 10

A.

We went over this this morning.

16:42:09 11 right? 16:42:10 12 locked

Q.

I'm just making sure.

A.

I didn't deny him access.

16:42:14 14

Q.

When he asked to see the slides, you said no?

16:42:17 15 not 16:42:20 16 16:42:21 17 him

A.

I told him the slides were locked up and I did

12 13 14

That's this case; I had the slides

15 16:42:14 13

up.

16 17 18 19 20

give him the slides. Q. What's the difference when I said you denied

21 16:42:24 18

access.

16:42:26 19

A.

What's the difference?

22 I was denying everybody access.

I wanted the

23 16:42:29 20

slides locked up.

24 16:42:30 21

Q.

Including Dr. Jadwin; right?

16:42:32 22

A.

And including Dr. Shertukde.

16:42:34 23

Q.

What was Dr. Shertukde's complaint that you

25 26 27 28

16:42:38 24 16:42:41 25 to

presented at the first meeting in November, 2006? A. She had been asking me in late October to go

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w Page 351 1

I

COUNTY OF KERN

N

o

3 4

E

I, Cindee L. LeFevre, a Certified Shorthand

5

Reporter in the State of California, holding certification

6

No. 7974, do hereby certify that PHILIP LEE DUTT, M.D.,

7

the witness named in the foregoing deposition,

8

was by me duly sworn; that said deposition was taken

9

Wednesday, August 20, 2008, at the time and place set forth

10 11

on the first page hereof. That upon the taking of the deposition, the

12

words of the witness were written down by me in stenotypy

13

and thereafter transcribed by computer under my supervision;

14

that the foregoing is a true and correct transcript of the

15

testimony given by the witness.

16

I further certify that I'm neither counsel for

17

nor in any way related to any party to said action, nor in

18

any way interested in the result or outcome thereof.

19

Dated this 10th day of September, 2008, at

20

R

o

STATE OF CALIFORNIA ss.

2

o

Bakersfield, California.

21 22 23 Cindee L. LeFevre,

24 25

vs.

COUNTY (800) 322-4595

X

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

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EXHIBIT 48

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

53

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

From: To: O",te: S"-bjeet:

Document 277-4

Filed 12/01/2008

Page 129 of 209

Karen Barnes Philip Dutt, MD 9114/2006 1:14:54 PM Re: Dr. Jadwin's contract (cont'd)

I have made the requested changes to his job description, both your's and Irwin's, and attached the revised amendment. let me know if further changes are necessary. I need to talk with you and Irwin about a strategic matter related to the amendment. Are you available this aftemoon before 4 p.m.? Jadwin can do whatever his contract says he can do, subject to the policies of the county and the needs of the department. I know that's not the answer you want to hear; however, I do not believe(~-------" ----_.------'

His use of educational leave is subject to approval in advance. His first obligation is to staff the department. rm not sure how Rae books the CME days. You may want to ask her before pursuing this further. .

»> Philip Dutt, MD 911412006 8:06:21 AM »> I think we should add to the job description that when he is on call on weeknights or weekends that he is able to come to the hospital within 30 minutes if needed. This is a fairly standard expectation of pathologists nation wide. Also, KMC is a trauma center, and one of the trauma surgeons called me recently to confirm that the pathologist on call can come to the hospital within 30 minutes; this apparently is one of their requirements to be a trauma center. Article 1II.3.B., page 8: Will Dr. Jadwin be allowed to take off days without pay, as he did in 2005, orwill he be restricted to 20 days of vacation per year like everyone else? Article III.3.D.,page 8-9: Should his CMEleducationalleave be prorated over an entire year, or will he be allowed to take 10 days off for CME between now and December 31? Thank You, Philip Dutt Pathologist Lab Kern Medical center [email protected]

* * * *** * * * * CONFIDENTIALITY STATEMENT ** ** ** ** ** This message is intended only for the use of the individual or entity to which it is addressed and may contain infonnation that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of the communication is strictly prohibited. If you received this communication in error, please notify us immediately by telephone and return the original message to us at the E-mail address above. Thank you

CC:

Irwin Harris, MD; Rae McDonald

0000830

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

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54

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Document 277-4

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Page 1 of 1 Page 131 of 209

-

David Jadwin, DO Pathology Look Back Study From: To: Subject: CC:

David Jadwin, DO Peter Bryan Pathology Look Back Study Gene Kercher; Susie Price

Peter: We have discovered a series of serious diagnostic errors committed by a former pathologist working at KMC over a period of years. These errors involve the failure to identify frankly invasive adenocarcinoma in several prostate needle biopsies. A multi-year look back study will need to be undertaken. I have identified 95 prostate specimens in the HBO system of which only 10% are malignant. Of prostate needle biopsies, only 8.6% are malignant.

The expected rate of malignant biopsies is O h . I am pulling all of these slides, the path history and all subsequent PSAs to determin followup status. David

DFJ00589

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55

Untitled

04/19/2006 12:30 PM

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

Document 277-4

j Reminder: AOL will never ask you to send us your password or credit card number in an email. I !(

Filed 12/01/2008

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This message has been scanned for known viruses.

Prom: •

David Jadwin, DO

i

_o:

Peter Bryan

\

i

Cc:

[email protected], Karen Barnes

I

;

1

Subject:

Cytology Screening at KMC

i

Date:

Thu, 2 Mar 2006 11:36:58-0800

]

Peter: A couple years after I arrived at KMC, Gilbert and I elected to not offer a full time position to the cytotech that had worked at KMC for a couple of years as a temporary employee. There were some ethical issues involved and I discovered on retrospective review that the cytotech was missing several high grade lesions and calling them negative. I received a lot of harsh criticism from the gynecologists and the radiologists. There was a lot of hard feelings in other areas as well. Some time later, Dr. Schmalhorst from Physicians Automated Laboratory harshly said that cytotech was one of the best, he had seen. Leonard Perez told me last week that PAL sent a notice out to all of their clients stating that they had to let their cytotech go because of several missed high grade lesions; and they mentioned that they were going to have to rescreen several past months (years?) of pap smears. On another issue, I have not received a response from you regarding the need to rescreen 50 prior prostate needle biopsies from a. former KMC pathologist. What do you want me to do? David

Exhibit 271 Cindee L LeFevre, CSR # 7974

08/14/08 Peter Bryan, CEO

Pa^lj DFJ00750

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56

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

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Page 135 of 209

From: Peter Bryan To: [email protected] Cc: Irwin Harris, MD Sent: Fri, 21 Apr 2006 12:46:16 -0700 Subject: Re: Fwd: Cytology Screening at KMC Work through Irwin Harris on the need for a review of the cases. I have alerted him to the issue so he will help with what ever the appropriate process should be. It could be that he will suggest that you also take the issue to the Quality Management Committee for their information, but I will leave that to the two of you to decide. »> 4/19/2006 12:30:17 PM »> -----Original Message----From: David Jadwin, DO <[email protected]> To: Peter Bryan Cc: [email protected]; Karen Barnes Sent: Thu, 2 Mar 2006 11:36:58 -0800 Subject: Cytology Screening at KMC Peter: A couple years after I arrived at KMC, Gilbert and I elected to not offer a full time position to the cytotech that had worked at KMC for a couple of years as a temporary employee. There were some ethical issues involved and I discovered on retrospective review that the cytotech was high grade lesions and calling them negative. I received a lot of harsh criticism from the gynecologists and the was a lot of hard feelings in other areas as well.

missing several

radiologists. There

Some time later, Dr. Schmalhorst from Physicians Automated Laboratory that cytotech was one of the best he had seen.

harshly said

Leonard Perez told me last week that PAL sent a notice out to all of their clients s~ating that they had to let their cytotech go because of several missed high grade lesions; and they mentioned that they were going to have to rescreen several past months (years?) of pap smears. On another issue, I have not received a response from you regarding the need to rescreen 50 prior prostate needle biopsies from a former KMC pathologist. What do you want me to do? David 12

DFJ00799

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57

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

SAVITA PRASAD SHERTUKDE, M.D.

17

Thursday, August 7, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

ShertukdeS

Page 137 of 209 1

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

Q.

Document 277-4

Filed 12/01/2008

1

13:29:03

1

2

13:29:05

2 Dr. Jadwin at Kern Medical Center?

3

13:29:06

3

A.

No, I did not.

4

13:29:08

4

Q.

Why is that?

5

13:29:09

5

A.

I don't understand.

6

13:29:16

6

Q.

Okay.

7

13:29:18

7 about Dr. Jadwin to Kern Medical Center?

8

13:29:21

8

9

13:29:22

9 submit any complaint.

A.

Page 138 of 209 25

Did you ever submit any complaints about

I didn't --

Why did you not submit any complaints

Because there wasn't any reason for me to

10

13:29:25 10

Q.

You weren't terrified of him?

11

13:29:28 11

A.

Not -- not before this incident.

12

13:29:31 12

Q.

Okay.

13

13:29:34 13 you submit -- you didn't submit any complaints about

14

13:29:36 14 Dr. Jadwin at or around the incident in October 2005?

15

13:29:39 15

16

13:29:42 16 scared, but I -- I didn't submit a formal complaint,

17

13:29:48 17 like, you know.

18

13:29:51 18 you know, and --

19

13:29:52 19

20

13:29:55 20 about Dr. Jadwin scaring you at around the incident

21

13:29:58 21 in October 2005 --

22

13:29:59 22

A.

It just didn't seem like, you know --

23

13:30:00 23

Q.

Sorry.

24

13:30:02 24

25

13:30:04 25 2005?

A.

Q.

What about after the incident?

I told Dr. Dutt.

Did

I told Dr. Dutt that I'm

I told Dr. Dutt I'm scared, like,

Why didn't you submit a formal complaint

Just let me finish.

At or around the incident of October of

ShertukdeS

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

Document 277-4

Filed 12/01/2008

Page 139 of 209 42

1

13:49:07

1 know.

2

13:49:07

2

Q.

What did he do to you?

3

13:49:10

3

A.

This is what he did.

4

13:49:13

4 a clinician.

5

13:49:15

5 clinician.

A surgeon, like, you know, he's

6

13:49:18

6 important.

Dr. McBride used to run the oncology

7

13:49:21

7 conference.

8

13:49:23

8 clinician.

9

13:49:26

9 you know, we are -- like, you know, all of us, like,

He basically called up

Like, you know, it's important

Like, you know, it's an important And we want to be on good terms, like,

10

13:49:27 10 work here, like, you know.

11

13:49:30 11 like, you know, say something like that about us,

12

13:49:32 12 like....

13

13:49:34 13

14

13:49:36 14 with regard to the radical prostatectomy case, that

15

13:49:39 15 was completely wrong.

16

13:49:44 16

A.

Yeah.

17

13:49:48 17

Q.

Do you recall whether that patient

18

13:49:50 18 eventually had a prostatectomy or not?

19

13:49:53 19

20

13:49:55 20 refused after that for a prostatectomy.

21

13:49:59 21 I heard during oncology conference.

22

13:50:03 22 presented.

23

13:50:03 23

Q.

Again?

24

13:50:03 24

A.

Not -- that prostatectomy -- not the

25

13:50:06 25 prostatectomy.

Q.

A.

You know, trying to,

So in your opinion, Dr. Jadwin's behavior

Right?

No.

Dr. Jadwin was wrong, yeah.

The patient did not.

The patient That's what

This case got

The needle biopsies got presented.

ShertukdeS

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

A.

Document 277-4

Contract.

Filed 12/01/2008

Page 140 of 209 203

1

17:13:50

1

I think my contract will get

2

17:13:52

2 renewed if I get an evaluation from my peers, like,

3

17:13:58

3 you know, one of the two peers or somebody else in

4

17:14:00

4 the hospital or somebody who is aware of my work,

5

17:14:05

5 like, you know, a permanent physician at present.

6

17:14:09

6 Like, I have a permanent contract, you know.

7

17:14:13

7 within the -- within the -- I'm not on a one-year

8

17:14:17

8 contract.

9

17:14:27

9

Q.

What do you mean by permanent contract?

10

17:14:29 10

A.

It's valid.

11

17:14:31 11 few years.

12

17:14:34 12 have to validate it.

13

17:14:37 13 valid up to a certain date.

14

17:14:39 14

Q.

Okay.

15

17:14:44 15

A.

And then you have to validate it.

16

17:14:46 16 what I know, like, you know.

17

17:14:51 17

18

17:14:52 18 we been on the record?

19

17:14:57 19

MR. LEE:

20

17:15:01 20

THE REPORTER:

21

17:15:04 21

MS. BARNES:

22

22

23

23 off --

I am

I have a permanent contract.

You have to validate it every

I don't -- two years or three years you

MS. BARNES:

It's valid.

MR. LEE:

My contract is

That's

Madam Reporter, how long have

Do you want to go off the record? I can check for sure. Are you just about finished?

Getting very close.

24

17:15:10 24

MS. BARNES:

25

17:15:11 25 That's why I'm asking.

But we can go

We're approaching four hours.

ShertukdeS

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

Document 277-4

MR. LEE:

Okay.

Filed 12/01/2008

Page 141 of 209 204

1

17:15:12

1

2

17:15:15

2 finished.

3

17:15:21

3

4

17:15:22

4 and see.

5

17:15:22

5

6

17:15:27

6 BY MR. LEE:

7

17:15:33

7

8

17:15:36

8 every few years, as you say?

9

17:15:38

9

A.

Yeah.

10

17:15:39 10

Q.

So why would -- can you think of any reasons

11

17:15:42 11 why your contract would not become -- would not be

12

17:15:46 12 validated at any particular time?

13

17:15:47 13

14

17:15:49 14 shouldn't be validated.

15

17:15:51 15

16

17:15:53 16 mistakes like Dr. Jadwin and engaging in all sorts of

17

17:15:56 17 incompetence?

18

17:15:59 18 then not be validated or --

19

17:16:01 19

20

17:16:03 20 colleagues or from Dr. Dutt or from, you know, like

21

17:16:07 21 the CMO or the CEO, like, you know.

22

17:16:11 22 about it.

23

17:16:12 23

24

17:16:20 24 non-core physician?

25

17:16:20 25

MS. BARNES:

MR. LEE:

Q.

A.

Okay.

Q.

A.

Okay.

We'll go on.

I don't think of any reason why it

Okay.

A.

We'll go another five minutes

So your contract is self-validating

No.

Q.

We're very close to

Well, what if you were really making

No.

Would you then -- would your contract

Okay.

I would know about it from my

I would know

What's a core physician versus a

A core physician is what -- a non-core

ShertukdeS

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

Q.

Document 277-4

Filed 12/01/2008

Page 142 of 209 206

1

17:17:17

1

2

17:17:21

2 a self-validating contract like yours?

3

17:17:24

3

A.

Non-core physicians?

4

17:17:25

4

Q.

They don't get permanent contracts.

5

17:17:28

5

A.

They become permanent.

6

17:17:30

6 physicians after a year.

7

17:17:31

7

8

17:17:34

8 you're becoming a permanent physician.

9

17:17:36

9

A.

That's right.

10

17:17:37 10

Q.

And you get a permanent contract.

11

17:17:39 11

A.

Yeah.

12

17:17:40 12

Q.

Permanent contract just like yours.

13

17:17:43 13

A.

Yeah.

14

17:17:44 14

Q.

Okay.

15

17:17:46 15 physician -- core physicians expect to continue

16

17:17:49 16 working at Kern Medical Center for the rest of their

17

17:17:52 17 careers.

18

17:17:53 18

19

17:17:56 19 contract.

20

17:17:58 20 departments probably have a five-year contract.

21

17:18:00 21

Q.

Okay.

22

17:18:01 22

A.

Or some people have a four-year contract,

23

17:18:05 23 some people have a three-year contract, things like

24

17:18:07 24 that.

25

17:18:08 25

Q.

Now, do -- non-core physicians, do they get

Okay.

Right?

They become core

So when you become a core physician, Correct?

Correct?

Right?

And then you expect that as a core

Correct?

A.

Q.

No, they don't.

No.

I think many of them have certain years

Like some people, like, you know, heads of

Okay.

So you think there's a difference

ShertukdeS

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

Document 277-4

Filed 12/01/2008

220 Page 143 of 209

STATE OF CALIFORNIA ss. COUNTY OF KERN

I,

Susan R. Wood, a Certified Shorthand

Reporter in the State of California, holding Certificate No.

6829, do hereby certify that

SAVITA PRASAD SHERTUKDE, M.D., the witness named in the foregoing deposition, was by me duly sworn; that said deposition was taken Thursday, August 7,

2008,

at the

time and place set forth on the first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action, nor in any way interested in the result or outcome thereof. Dated this 15th day of August,

2008,

at

Bakersfield, California.

WOOD & RANDALL (800) 322-4595

----------------_41

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

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EXHIBIT 53

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

58

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

Document 277-4

Filed 12/01/2008

Page 145 of 209 549

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

DAVID F. JADWIN, D.O.,

) VOLUME IV ) Page 549 Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) COUNTY OF KERN; et al. ) ) ) Defendants. ) _______________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

DAVID FRANK JADWIN, D.O.

17

Tuesday, March 11, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

Reported by:

Susan R. Wood, CSR No. 6829

DFJ4

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

Document 277-4

Filed 12/01/2008

1

Q.

What is Exhibit 592?

2

A.

It's an e-mail that I sent expressing a

3

rather serious concern to the president of the

4

medical staff and to the CEO of medical -- of Kern

5

Medical Center.

6 7 8 9 10

Q.

And what was your serious concern that you

expressed in this memo? A.

I was very concerned that Dr. Ragland was

somehow impaired. Q.

11

Impaired.

12 13

What is -- what did you mean when you say impaired? A.

I think the -- the term relative to a

14

physician is that they may not be able to carry out

15

their duties appropriately.

16 17

Q.

And your reasons for believing that way are

set forth in this memo?

18

A.

This and the e-mail that was attached, yes.

19

Q.

There was an e-mail attached to this?

20

A.

I believe so, yes.

21

Q.

What was the e-mail that was attached?

22

A.

We've actually reviewed that in a past

23 24 25

session. Q.

Fine. Tell me what it is, sir.

DFJ4

Page 146 of 209 618

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

1

Q.

2 A.

4

I showed him the e-mail.

Do you want to spell his name,

MR. WASSER:

Yeah.

Let's spell his name,

please. THE WITNESS:

T-a-i Y-o-o.

BY MR. WASSER:

10 11

Yes, I did.

please.

8 9

Tai Yoo.

MR. LEE:

6 7

Filed 12/01/2008

You talked to Dr. Tai Yoo?

3

5

Document 277-4

Q.

Is he -- and what was his position at that

time?

12

A.

He was the chair of psychiatry.

13

Q.

All right.

14

A.

So I didn't do this on a lark.

I actually

15

went to the chair of psychiatry and expressed my

16

concern with him, and he agreed that there was

17

some -- some worrisome features here.

18

Q.

Some worrisome?

19

A.

Worrisome features.

20

Q.

And that's why you wrote this memo that

21 22 23

we've marked as Exhibit 592? A.

I think physicians have an obligation to

report possible impaired physicians, yes.

24

Q.

They do?

25

A.

Yes, they do.

DFJ4

Page 147 of 209 621

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

1 2

Q.

Document 277-4

Filed 12/01/2008

Do physicians have an obligation to report

anything else?

3

MR. LEE:

That's overbroad.

4

THE WITNESS:

5

I -- I don't know what you mean by that, but

Yeah.

6

I do know that physicians -- there have actually

7

been, I believe, cases that I've heard about where

8

physicians were sued because someone was practicing

9

in an aberrant way and the medical staff didn't do

10

anything about it when they should have.

11

BY MR. WASSER:

12 13

Q.

Things like -- like making mistakes, things

of that nature?

14

A.

Yes.

15

Q.

Physicians have a duty to report that kind

16

Um-hmm.

of thing, don't they?

17

MR. LEE:

And it's overbroad, vague and

18

ambiguous, and it calls for a conclusion.

19

BY MR. WASSER:

20

Q.

You can answer, sir.

21

A.

During a joint commission inspection of the

22

hospital several years ago, the inspector actually

23

asked the question, what do you do if you see someone

24

who may be impaired down the hall?

25

because you do have an obligation to report -- that's

And it was a test

DFJ4

Page 148 of 209 622

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

Document 277-4

Filed 12/01/2008

1

a serious quality issue.

2

intoxicated, they're going to go into the operating

3

room or deliver a baby, that's a -- that's a serious

4

problem.

5 6

Q.

And you drew all those conclusions about

Dr. Ragland from the memo he wrote you?

7

MR. LEE:

8

THE WITNESS:

9

I mean, if someone's

all.

Misstates his testimony. I don't think I said that at

I said I had some concerns based upon the

10

pattern of his behavior, as expressed in words; plus

11

the lack of capability of expressing it, anything

12

above an eighth grade English level; that there may

13

have been -- you know, if someone was on drugs or

14

alcohol, they could well have typed or written

15

something like this.

16

I -- I don't know.

It was also, in my opinion, an inappropriate

17

tone in response.

It was a punishment or punitive

18

type of response, actually, to some very valid,

19

properly construed questions that I had written in my

20

e-mail.

21

Q.

To him?

22

A.

Yes.

23

Q.

So -- so part of your concern about

24

Dr. Ragland's e-mail was that you thought it was

25

retaliatory to you?

DFJ4

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1

you know, it's this, this, this, this.

2

make sense.

Filed 12/01/2008

It doesn't

3

Q.

Did you ever go just talk to Dr. Perticucci?

4

A.

I actually did talk to Dr. Perticucci after

5

the fact, after this letter.

6

Q.

After the letter?

7

A.

Actually -- well, I don't remember exactly,

8

but I did talk to Dr. Perticucci, and I explained the

9

situation to him.

And his response was, oh, I'm

10

sorry.

11

had just come directly to me I could have corrected

12

the problem within seconds.

13

Q.

14

letter?

15

A.

He was high strung.

I don't know.

But if he

You talked to him after you wrote your

I don't remember if it was before or after.

16

Probably afterwards.

17

the telephone, and it was apparently obvious to him

18

once I explained to him what had happened and why it

19

all made sense.

20

sorry.

MR. LEE:

25

I think we're going to want 30

days to correct the transcript.

23 24

And all he could say was, oh, I'm

And that was the end of it, so....

21 22

But I explained it to him on

MR. WASSER:

Whatever the rules call for,

Counsel. Let's mark this as our next one, please.

DFJ4

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w

o

STATE OF CALIFORNIA

R

ss.

D

COUNTY OF KERN

I

N D E

X I,

Susan R. Wood,

a Certified Shorthand

Reporter in the State of California, 'holding Certificate No.

6829,

DAVID FRANK JADWIN,

do hereby certify that

D.O.,

foregoing deposition,

the witness named in the

was by me duly resworn;

deposition was taken Tuesday,

March 11,

2008,

that said at the

time and place set forth on the first page hereof. That upon the taking of the deposition,

the

the witness were written down by me in stenotypy and thereafter transcribed by computer under my supervision;

that the foregoing is a true and correct

transcript of the testimony given by the witness. I

further certify that I am neither counsel for

in any way related to any party to said action,

nor

way interested in the result or outcome thereof. Dated this 31st day of March,

2008,

at

California.

Susan

~-N-o-.-6-8-2-9----

WOOD & RANDALL (800) 322-4595

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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

EXHIBIT 54

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

59

;

/

I

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.KERN

~ • MEDICAL CENTER

HUMAN RESOURCES DEPARTMENT

Memorandum To:

Dr. Marvin Kolb, Chief Medical Officer

From:

Michael Ewald, Hospital Human Resources Director

Date:

October 21,2003

Re:

Confidential Report of Investigative Findings - Complaint of Dr. Chester Lau Against Dr. David Jadwin

Please find attached a confidential report of the Human Resources Department's investigation into a formal complaint by Dr. Chester Lau against Dr. David Jadwin.

I am available to discuss with you or anyone else you designate the findings and conclusions of this investigative report. Please do not hesitate to contact me at Extension 62339.

~/ Michael Ewald, SPHR Hospital Human Resources Director

Attachment xc:

Peter Bryan, Chief Executive Officer Linda Nipper, PHR, Hospital Employment Specialist

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• KERN MEDICAL • CENTER

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October 20,2003

--CONFIDENTIALREPORT OF INVESTIGATIVE FINDINGS

INVESTIGATION OF COMPLAINT BY DR. CHESTER LAU, DEPARTMENT OF RADIOLOGY AGAINST DR. DAVID JADWIN, DEPARTMENT OF PATHOLOGY At the request of Dr. Marvin Kolb, Chief Medical Officer, on October 8, 2003, the Human Resources Department began investigating Dr. Chester Lau's allegation that he was physically assaulted and intimidated by Dr. David Jadwin on August 9, 2003 in the Kern Medical Center Radiology Department. A fonnal complaint by Dr. Lau was made in a memorandum, dated August 12,2003, addressed to Dr. Javad Naderi, Chainnan of Department of Radiology, with a copy to Dr. Marvin Kolb, Chief Medical Officer. Dr. Lau's complaint concerns an August 9, 2003 incident where he alleges "unprofessional behavior" by Dr. Jadwin when Dr. Jadwin "grabbed" his tie with his hand and "dragged" him "several feet." Dr. Lau stated in his letter, "I felt that 1 lost my breath for a few seconds and 1 felt the sudden ripping force around my neck." He said that he "managed to regain (his) posture by pulling (his) tie out of his (Dr. Jadwin's) hand." Dr. Lau wrote, "During this incident, I felt physically threatened. Dr. Jadwin's behavior is not just inappropriate. His behavior is downright unprofessional and dangerous. I am formally filing a complaint regarding his unprofessional behavior." Complaint Investigated

Our investigation focused on the August 9, 2003 incident in an effort to determine whether there was sufficient credible evidence substantiating Dr. Lau's allegation that Dr. Jadwin, without provocation or warning, forcibly pulled on Dr. Lau's necktie, causing Dr. Lau to take several involuntary steps across the Radiology reading room into the Radiology hallway before Dr. Lau pulled his necktie out of Dr. Jadwin's hand. The investigation included an assessment as to whether the incident constituted a minor physical assault that could reasonably have created in Dr. Lau excessive, disruptive anxiety and short-termed neck pain during the incident. Specifically, the investigation sought to determine if there had been a Physical Assault (Minor) Level 3 violent act inflicted on Dr. Lau in Kern Medical Center in violation of Section 1211 of the Kern County Policy and Administrative Procedures Manual (Workplace Violence Policy). The investigation addressed three examples in the Workplace Violence Policy of threats, or acts of violence for which criminal prosecution and disciplinary action may be taken. I. 2.

Committing an assault or battery. Engaging in any behavior that unreasonably risks the safety of another.

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Accosting or harassing another, either face to face, or by telephone, fax, mail, computer, or other form of communication.

Method of Investigation The investigation consisted of a review of the August 12, 2003 written complaint and interviews with those connected with the case. Both the accuser and the accused were separately interviewed. Two eyewitnesses were also interviewed. Additionally, Drs. Kolb and Naderi were interviewed about what Dr. Jadwin and/or Dr. Lau told them about the incident. Investigative Findings I.

There were two eyewitnesses to the incident: Dr. Nitin Athavale of the Department of Radiology, and Erin Baldwin, a medical student assigned at that time to the Department of Pathology rotation. Both were interviewed and provided substantially similar accounts of the incident.

2.

The parties to the incident and the eyewitnesses all agree that a verbal argument immediately preceded the tie-pulling incident. The argument was over the validity of statistical information gathered and presented by Dr. Jadwin showing, in Dr. Jadwin's opinion, the inadequacy of biopsy samples submitted by the Department of Radiology to the Department of Pathology. First Dr. Athavale and then Dr. Lau vehemently disagreed with the assertions made by Dr. Jadwin that the biopsy samples were shown by his research to be inadequate. There is some divergence of recollection and opinion as to who was more angry and vocal, but the witnesses agree that Dr. Lau and Dr. Jadwin were both involved in an escalating and heated disagreement that culminated in Dr. Jadwin inviting Dr. Lau to accompany him to the Department of Pathology to review more research. When Dr. Lau adamantly refused to accompany Dr. Jadwin, stating that he had a procedure to perform, an evidently exasperated and angry Dr. Jadwin reached over to take hold of Dr. Lau's necktie with his hand and pulled Dr. Lau by his necktie about four or five steps from the reading room to the doorway of the hall before Dr. Lau told him to stop doing that and pulled his necktie back.

3.

According to those prt;:sent, the tie-pulling incident was completely unexpected. No threats were made before or during the incident, and Dr. Jadwin ceased any contact with Dr. Lau at the end of the incident. Dr. Jadwin left the Department of Radiology immediately and reported the incident to the Chief Medical Officer within minutes of it ending. Neither Dr. Lau nor the two witnesses report that Dr. Jadwin had any physical contact with Dr. Lau other than to pull his necktie. The action did not appear premeditated nor did it appear intended to injure or frighten Dr. Lau. Both parties have avoided each other since the incident.

4.

Dr. Lau is seeking assurances that there will not be a repeat incidence from Dr. Jadwin. Dr. Jadwin has expressed regret over the incident. This appears to be an isolated incident, and there have been no related complaints against Dr. Jadwin either before or after this incident.

2

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Conclusions The preponderance of evidence shows: 1.

During an argument between Dr. Chester Lau and Dr. David Jadwin in the Department of Radiology on August 9, 2003, Dr. Jadwin reinforced his demand that Dr. Lau accompany him to the Department of Pathology by unexpectedly taking Dr. Lau's necktie in his hand and pulling Dr. Lau by his necktie several feet into the Radiology hallway before Dr. Lau stopped him. It is reasonable to conclude that this constituted a minor physical battery that at a minimum caused physical discomfort for Dr. Lau and created excessive, disruptive anxiety for him.

2.

Dr. Jadwin's action created a hostile work environment and violates the Workplace Violence Policy of the County of Kern; specifically, by engaging in a Level 3 act of violence that unreasonably risked the safety of another physician working at the hospital. Since Dr. Lau had stated he had to perform a medical procedure on a patient moments before he was accosted by Dr. Jadwin, it not unreasonable to conclude that Dr. Jadwin's action could have potentially endangered the quality or efficiency of care provided to patients, although there is no evidence to suggest that patient care was compromised or affected.

3.

[n accordance with the Workplace Violence Policy of the County of Kern and my responsibilities as Hospital Human Resources Director, I will attach this report to the Workplace Violence or Threat Mitigation Report, and forward these documents to the County Risk Management Division.

~C2~ Director of Human Resources Kern Medical Center County of Kern

.<

~ 74r;"" ~,PHR Hospital Employment Specialist Kern Medical Center County of Kern Attachments: Memo from Dr. Chester Lau to Dr. Javad Naderi, dated August 12, 2003 Transcript of Interview with Dr. Chester Lau Memo to File - Interview with Dr. Nitin Athavale Transcript of Interview with Dr. Marvin Kolb Transcript of Interview with Erin Baldwin Transcript of Interview with Dr. Javad Naderi Transcript of Interview with Dr. David Jadwin

3

0000034

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TO:

JAVAD NADERI, \I.D, Cf-L\IR.M.AN OF DEPARTMENT OF RADIOLOGY

FROM:

CHESTER LAU, i\!.D

SUBJECT:

DR.Jl\DWIN'S UNPROFESSIONAL BEHAVIOR

DATE:

8/ 12!2003

cc:

MAR\rlN KOLB, M.D., MEDlC'\L DIRECTOR

Page 157 of 209

[ ,un bringing to your attention to an incident regarding of Dr. Jadwin's unprofessional behavIOr. On August 9 at approximately 10:30 am, Dr. Jadwin and I were debating over some pathology data he brought over to the department of radiology. Towards the end of the debate, Dr. Jadwin insisted that I have to go over to his office in Pathology to look over more data. I told him that I could not leave the department because I was attending to a patient to whom I was going to perform an angIOgram. He further insisted that I had to go with him He grabbed my tie with his hand and dragged me for several feet I felt that I lost my breath for a few seconds and I felt the sudden ripping force arOlmd my neck. I managed to regain my posture by pulling my tie out of his hand. I warned him not to do that mymore. During the incident, Dr. Athavale and one of the female medical students who was on the pathology rotation witnessed the entire transaction. Durmg this incident, I felt physically threatened. Dr. Jadwin's behavior is not just inappropriate. His behavior is downright unprofessional md dangerous. I am formally fuing a complaint regarding his lmprofessional behavior

?'4~4-.~

Chester Lau, MD.

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INTERVIEW WITH DR. LAD October 8, 2003

MICHAEL EWALD:

Linda Nipper and I, Mike Ewald, are meeting with Dr. Lau. It is October 8,2003, at approximately 3:00 p.m. and we are recording this with Dr. Lau's permission and this has to do with this incident with Dr. Jadwin where there was apparently some - he pulled an article of your clothing. Maybe if you could just kind of recap what exactly happened and maybe what led up to it, and then what happened and what happened afterwards.

DR. LAU:

So, I am Dr. Lau, by the way. The incident happened I would say about a month ago. I couldn't recall the date now.

MICHAEL EWALD:

Okay.

DR. LAU:

It was in the morning - late morning. I was waiting to do a procedure, an angiogram of a patient. Patient was down in the department and we were getting ready to go, and Dr. Jadwin came into the department and showing data to Dr. Athavale. I wasn't paying attention at the time.

MICHAEL EWALD:

Was this in the little room where you read the film?

DR.LAU:

Yes. Correct. It was in the room right at the end of the Radiology Department where all the radiologists read their films. He was showing Dr. Athavale some data regarding how accurate in his diagnosis of pathological specimens. I wasn't paying attention at the time and he called to my attention. He said I should look at his data. And I said, ''I'm busy." But he insisted that I look at his data. So, I stand by him and start looking at his data and he pointed out to me that since he got 20% or 30% - wasn't sure the percentage -less than 50% of his specimens are malignant - core malignant - then his data should be good to say that his core or (inaudible) data is minimal. And I couldn't understand that and argued with him. It was in a way a kind of heated argument. I told him that you can't say that because it's malignant and the rest or more than 50% - you don't know - it's not adequate - how can you say that because you have something that's malignant, you can imply the rest is okay. You can't say that. And he said, "Okay, fine. Come to my office." He told me to go to his office to look at the rest of the data and I wasn't in a mood to see any more data - to argue any more at that time and I said, "No, I got to stay here because I have an angiogram coming up and I got to attend to the patient." It was an unstable patient - a patient from the ICU. Apparently, he didn't take that for - as a no to go to his office. He

-I -

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grabbed my tie - grabbed my tie - and yanked me out from that small room into the hallway.

MICHAEL EWALD:

So, he actually pulled you -

DR. LAD:

Oh, he pulled me out of the room.

MICHAEL EWALD:

So, how many steps is that? Three or four?

DR.LAU:

Five steps - I would say five steps altogether.

MICHAEL EWALD:

Okay.

DR. LAD:

Until I regained my posture and then ripped my tie back out of his hand. And I told him, "Don't you do that." I didn't appreciate that movement at all. I personally don't like to wear ties. I don't wear ties when I don't need to. I go to formal receptions - I go to work and wear a tie. When I go home or everywhere I go, I don't like to wear a tie. The tie is a method of representing of what I do and maybe my reputation in a way. But, I don't like somebody to pull on something that could intend danger to my physical being. When he pulled my tie - and I do feel my neck bend backward because of the force - you know - he's a big guy. He's a pretty good size guy. Maybe he didn't realize what he was doing, but that movement - that does cause me a little bit of pain - a little bit of pain at the time and when I was doing the angiogram, I could feel it. After the angiogram, which was about an hour and a half afterward, I went to lunch and I start thinking of it - I still had a little bit of pain in my neck and I decided that maybe I should do something about it. Not that I want to punish the guy. I want to make sure that he would not do that to me or to anybody else in this hospital. It is not correct to yank on somebody's tie with that kind of force to the point that the other person would feel pain in the neck. I do not have any persistent pain after lunch - afterwards - but I think that ifhe had just given a little bit stronger yank on my tie, I might have sustained injury in my neck.

MICHAEL EWALD:

After he did that and you grabbed your tie back from him - back out of his hands, did he do this with his right hand or left hand?

DR. LAD:

Oh,jeez. I can't tell. I don't remember. It happened so fast.

MICHAEL EWALD:

Okay. But, anyway he had your tie - you took it back from him then what did he sayar do?

DR. LAD:

He - I told him don't do that any more. He didn't say anything else. He turned around and walked away.

-2-

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MICHAEL EWALD:

He just walked away. He didn't say a thing?

DR. LAU:

He didn't say he's sorry. He didn't say anything else. But, he walked away. I don't remember he say anything. No. Not that I wanted him to say sorry about it. At that time, I was kind of too infuriated because of the fact that somebody would do that to me and something not asking for. No doubt about it, I may have put him down a little bit by saying his data wasn't correct - the way he interpreted his data was incorrect. I'm sorry that I belittled him that way, but I just do it professionally to point out that the way he interpreted his data is not the way that any other people would see it. Only he could see that way.

MICHAEL EWALD:

So, you had - could I characterize this properly as a heated professional argument about the data and did you call - did he call you names or did you call him names - or did he get personal in anyway?

DR. LAU:

No name was called - nothing was personal. Everything was on the data. I just said the data - the data. You cannot- if anything, I just said that you cannot say - you cannot conclude from this data that - that you have enough adequate specimens. I just tried to tell him that you just have less than 50% of what is going on and how can you confer 100% of what's going. You have half - I did mention that you have half of the empty glass. How can you say that the full glass will be the same. And I did mention those words to him.

MICHAEL EWALD:

And he - and what he was saying to you was he was still insisting that it was valid data and that he then wanted you to come down to his office to see more?

DR. LAU:

To see more.

MICHAEL EW ALD:

Who witnessed this?

DR. LAU:

Dr. Athavale was there. He has a female - not sure if she's a medical student or a technician - along with him. She was there, too. Two persons there.

MICHAEL EWALD:

Do you know her name or could you get us her name?

DR. LAU:

I don't know her name.

MICHAEL EWALD:

Okay. Have you seen her since then?

DR.LAU:

No. I haven't seen her since then.

-3-

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MICHAEL EWALD:

Okay.

DR. LAU:

No, because he brought her along.

MICHAEL EWALD:

Alright. Did he say anything to you afterwards?

DR. LAU:

Regarding that incident?

MICHAEL EWALD:

Yes.

DR. LAD:

No. Nothing yet. Nothing.

MICHAEL EWALD:

Okay.

DR.LAU:

I try to avoid him as much as possible, except at the professional level.

MICHAEL EWALD:

Oh, I'm sorry. Dr. Athavale?

DR. LAU:

No, I'm - oh, you mean Dr. Athavale?

MICHAEL EWALD:

Yes. I'm sorry. I was unclear. Did Dr. Athavale say anything to you? Did he make any comments.

DR. LAU:

Yes. He mentioned to me that - yes, he saw the incident. He saw exactly what was going on and he can recount what was going on. He did mention it to me.

MICHAEL EWALD:

Okay. Did he express anything to you about being surprised or upset about that?

DR. LAU:

No.

MICHAEL EWALD:

But he just basically said that he could be a witness for you, is that it?

DR. LAU:

Yes. He said he saw the incident. Basically, that's what he said.

MICHAEL EWALD:

Okay. Now when you were pulled out into the hall, there was nobody else out in the hall who saw that?

DR. LAU:

Vh - okay - oh I remember that. There was - Greg Prince was there afterwards. Not sure he saw exactly what's going on. He was in the hallway further down, near by the main hallway.

MICHAEL EWALD:

And who was this?

-4-

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DR. LAU:

Greg Prince. He's the supervisor.

MICHAEL EWALD:

Oh, Greg Prince. Okay.

DR.LAU:

He's at the end of the hallway where the reading room is - the entrance is right here - I flew out into the hallway. Greg Prince was walking out of his office at the other end of the hallway. I'm not sure he saw what's going on.

MICHAEL EWALD:

Okay. He may have heard though.

DR.LAU:

Might have heard.

MICHAEL EWALD:

And you say that you said, "Don't pull my tie" or words to that effect.

DR. LAU:

Might have, yes. You may want to call- corroborate it with him. I'm not sure he saw what was going on, but he was there at the end.

MICHAEL EWALD:

Okay. Have you had any other unsatisfactory interactions with Dr. Jadwin before?

DR. LAU:

I just don't like the way that he called the results of the biopsies, that's the only thing I don't like.

MICHAEL EWALD:

But you haven't had any shouting matches or angry words or anything else with him before that time?

DR. LAU:

No.

MICHAEL EWALD:

So, were you surprised when he pulled your tie? Was that one of the feelings that you had when he did that?

DR. LAU:

Surprised - infuriated - both.

MICHAEL EWALD:

Because he took a part of your clothes and pulled them without any cause or justification for that?

DR. LAU:

Yeah. The other feeling i got in my mind was I was coerced to do something. I feel that Dr. - to a certain place. Now, I didn't want to go somewhere. He insist that I got to be there by physical force and he did it with physical force, even for five steps or so.

MICHAEL EWALD:

Uh-huh. And do you think that he knew what he was doing or was he just so caught up in the moment that he just lost it?

DR. LAD:

I don't know. I really don't know. You'd have to ask him on that

-5-

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point. I don't know. I got the feeling that maybe he just didn't know what he's doing and I - when I report this, I didn't think that he - I did not think that he know what he's doing and I'm afraid that he will cause damage to other people or to me or maybe - who knows - you know. One thing can lead to another and I hate to see that and I see that in my life - (inaudible) my life and other people's lives and (inaudible) - and it wasn't a good outcome and nothing is pretty and I don't want to see that at all. I want to stop before - at the first step and nothing is going to be (inaudible) towards the end. MICHAEL EWALD:

Have you heard of any other incidents involving Dr. Jadwin where he's pulled a tie or touched somebody or been very angry at somebody?

DR.LAU:

No. No. This is the first time I've deal with him in this way.

MICHAEL EWALD:

Okay. What happened afterwards? Did he come back and talk to you or have you heard from him at all? Has he written to you or telephoned you or talked to you? When you see him, what does he say or do to you?

DR. LAU:

Uh. I try to avoid him as much as I can. I don't even want to have any eye contact with him in the hallway when I see him walking the other way. I try to do something - I don't want to get close to him. The only time that I need to be close to him is when I take a biopsy of the patient and hand the specimen over to him. That's the only time that I will be with him and that's on professional level and there's a lot of people there. And I feel comfortable with it. If I'm one-an-one with him or even in (inaudible) area, I try to avoid as much as I can with him. Not that I'm scared or what, it's just that I don't want to escalate the situation further. That's how I think of it.

MICHAEL EWALD:

Has he tried to talk to you at all about this incident?

DR. LAU:

No.

MICHAEL EWALD:

Then it's safe to say that he hasn't apologized?

DR.LAU:

Not that I want one - no, he didn't. No, I didn't - it doesn't matter if he apologized or not. All I need to know is - make sure that this would not happen again. Unless he would say to me that it would not happen again, so we would not have any future incidents like that happen. He never talked to me - I'm sorry - to answer the question.

-6-

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MICHAEL EWALD:

Has he - have you been feeling any other pain or any other affects after this other than the immediate time when that was happening and right afterwards where you felt neck pain and - but, you don't have any stress or any incidents where you're afraid? You're not afraid of him, or anything like that?

DR. LAU:

No. I'm not afraid of him and I don't have any pain now. I have full function. I wouldn't hold him for anything physically or emotionally - no, no. It was - I believe it was a spontaneoussomething spontaneous - something that he maybe get used to doing. I'm not saying he did this before. Maybe he thinks it's so spontaneous doing it. He didn't know what he's doing. Ijust want make it plain - to warn him that that's not the right way to do things and to not do it again. Because if this is a spontaneous thing that he does and he may do it again - and with his strength he can do damage.

MICHAEL EWALD:

So, if you could just tell me - we usually ask this of anybody in this situation - what would you like to see the hospital do in this case?

DR. LAU:

I think the hospital has done everything and I don't think the hospital is liable for anything. There's no damage - no foul- no harm. I wouldn't hold anybody for it. I just want Dr. Jadwin not to do that to me again and or to anybody-

MICHAEL EWALD:

So, you would like assurances from Dr. Jadwin that he will not do that again and that he recognizes that that was to you, certainly, serious breach of decorum by grabbing your tie and pulling you.

DR. LAU:

That's all I want. That's all I want.

MICHAEL EWALD:

Okay. Linda, do you have any questions?

LINDA NIPPER:

No, I don't.

MICHAEL EWALD:

Okay. Alright. We will be investigating this and preparing a report for the Medical Director with our conclusions and recommendations. If anything else comes to mind - if you think of anything else - please contact either myself or Linda so that we can get any other thoughts that you have down. I would ask, as we do with anybody in an investigation, that from this point on not to discuss it with anybody until we've completed our investigation.

DR. LAU:

Okay.

MICHAEL EWALD:

And if Dr. Jadwin attempts to talk to you about it, I would ask that

-7-

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you refer him to us so that we can discuss it with him and not - I don't think it would be good ifhe attempted to discuss it with you or anyone else either. We'll be asking him not to talk about it with other people, too. DR. LAU:

I'm sorry if I caused any alarm or whatsoever by writing this letter. I didn't mean to cause so much trouble and cause County to spend so much resources on this matter. I really don't-

MICHAEL EWALD:

I think it's an important issue to you. 1- certainly, it was an unusual - maybe even a frightening incident - that - and I'm glad that you brought...i t to our attention and we will do everything we can to investigate it and make sure it doesn't happen again. So, I think that it's - I don't think that you should be apologetic at all. I think that it was good that you did that. Well, thank you very much, Dr. Lau. I appreciate it. And, again, if anything comes to mind, please let me know. Okay?

DR. LAU:

Okay. Thank you very much.

MICHAEL EWALD:

Thank you.

MICHAEL EWALD:

The time is 3: 16 p.m. and this is the conclusion of the interview.

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.KERN

~ • MEDICAL CENTER

Human Resources Department

Memorandum To:

File

From:

linda F. Nipper, Hospital Employment Specialist

Date:

October 9,2003

Re:

Investigative Notes Lau - Jadwin Complaint Interview with Dr. Nitin Athavale

I met with Dr. Nitin Athavale at 1:50 pm on October 9, 2003 in the Radiology Department. Dr. Athavale was named as a witness to the alleged workplace violence incident between Drs. Lau and Jadwin on August 9, 2003. Dr. Athavale stated he was involved in a discussion with Dr. Lau and Dr. Jadwin regarding pathology issues with the lab. Drs. Lau and Jadwin continued the discussion, which became a heated professional disagreement. Dr. Athavale, while no longer involved in the discussion at that time, remained within a few feet of both doctors. Dr. Athavale heard the doctors arguing, though not in a loud tone. Dr. Athavale saw Dr. Jadwin pull Dr. Lau by his necktie into the hall. Dr. Athavale stated that he didn't know why. Dr. Athavale does recall there was a medical student who entered the reading room with Dr. Jadwin, who may have also been present during the altercation. He did not know who she was. Dr. Athavale recalls that after Dr. Jadwin pulled Dr. Lau into the hall by his necktie, the two spoke briefly and went their separate ways. Dr. Athavale has not spoken to either doctor about the incident and has heard nothing about it again. He did not hear what was said between the doctors in the hallway after Dr. Jadwin pulled Dr. Lau there.

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INTERVIEW WITH DR. KOLB October 10,2003

MICHAEL EWALD:

This is an interview - a taped interview with Dr. Marvin Kolb on October 10,2003, at approximately 9:30 a.m. in Dr. Kolb's office. Present also is Linda Nipper, Hospital Employment Specialist and we are here to discuss an alleged incident between Dr. Jadwin and Dr. Lau and I'd like to ask Dr. Kolb if you could tell us when you first learned of the incident, who you learned it from, and what you learned.

DR. KOLB:

Okay, this is Marv Kolb and I'm here on October lOth responding to questions posed. I have to refer to some notes of the date because, Mike, I don't remember the date or the time, but I do know that to my recollection it was not too long after this event, which I see here was on August 9th at 10:30 in the morning, David came by - David Jadwin came by myoffice to tell me about the event. I think it was the same day- I'm almost positive - well, pretty certain it was the same day, but it was - that he came in. He was pretty excited about it and he said that he'd just had an interaction with Chester Lau about an issue that I'm very familiar with, which is the bi-needle aspirations. And that Chester - this was down in Radiology and David had gone down there to talk about some of the specimens that they receive from Radiology which do not have adequate samples on them. The radiologists do the procedures. Pathologists are there at the time and determine whether there's enough tissue to make a diagnosis. So, anywayand this is a growing issue for us because David has stated that this was before the event - that we have a growing problem with adequacy oftissue by our clinicians who give biopsies. So there's a debate going on in the institution whether this is a competency issue of the ''biopsier,'' i.e. radiology, surgery, some of the surgical sub-specialties, Auggie Munoz or is it a pathology competency with those guys down in Pathology not knowing what they're doing. The long and short, David went down there and was talking to them about a biopsy. Chester got upset immediately - this was David's version - Chester got upset immediately about it. Very upset. Angry with him. Called David incompetent and David said "With that I grabbed his tie and said, Come on down to the lab and 1 will show you what's going on."

MICHAEL EWALD:

He specifically said, "I grabbed his tie?"

DR. KOLB:

Yup.

MICHAEL EWALD:

And what did he say about that incident as far as what did Dr. Lau do and did he talk about that in any kind of detail?

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DR. KOLB:

Urn - David felt that it was - that he was just kind ofjoking with Chester and pulling his tie a little bit and "Come on down to the lab and I will show you." I asked him if he touched him. He said, "No. I just grabbed his tie and pulled on it." So, I said, "Well, how did you pull on it?" "Well, a little bit like this, so it wasn't a very hard pulL" A little different story from what Chester told me. So, anyway - and then with that event, then Chester just backed away from him and I think they both walked away from it. I'm not really sure, but I think that kind of shook everybody up and they just walked away from it. So, right after it happened, he came down here. David talked about it and I told David at that time, "David, you're wrong. Don't ever touch anybody. I don't care how mad you get. Don't ever touch anybody. You were wrong." I told him right from the start and I told him then that I would talk to Chester - urn - about the event.

MICHAEL EWALD:

Did Dr. Jadwin express remorse or concern or anything? Or was this just sort of a factual report of what he had done?

DR. KOLB:

Urn - he was concerned about the event, no doubt about it.

MICHAEL EWALD:

He was concerned about the repercussions of the event?

DR. KOLB:

Well, the fact that he got angry enough and I made him aware of the fact that you don't ever touch anybody and he knew that. He knew he was wrong, but he didn't say, Marvin - he called me incompetent - I was so angry with him - urn - but he said, "He provoked me." But, I said, "David, I don't care how mad you get. I don't care how incompetent. You can't touch anybody." Umso, I had to reinforce that. He - the fact that he came in here right after it happened, he knew that there was something inappropriate in his actions.

MICHAEL EWALD:

Okay. And, you say that you later had a discussion with Dr. Lau. What did Dr. Lau tell you?

DR. KOLB:

It wasn't the same day. It was probably a day or two after thisurn - because I did - I'm not sure ofthe timing of all this, Mike, but I did have a conversation with Peter about this - I talked to Peter about this. So, I told Peter that I was - he and I talked about it and we decided that we - at this point in time - I can't remember whether - where you fit into this loop - if I called you about this or if I talked to Chester first and talked about it - but, anyway, the long and short of it all is that in conversations - I know with Peter and I can't remember how much we had involved you as advice and counsel on it - but, we detennined that I would have a conversation with Chester. I would see if- where he was with this - what he wanted to do about this - to validate the event and also to get David to apologize for this. And I can't remember the

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sequence. I then - within a short period of time - within a few days - had a conversation with Chester. MICHAEL EWALD:

And what did Dr. Lau tell you?

DR. KOLB:

When I talked to Chester about it, he said that yes it happened. He said, "He really pulled me tight. It almost took my breath away he pulled me so tight." Same event. Urn - and I said, "Well, you .know that was wrong." He said, "Yeah, I know it's wrong." And I said, "Well, I will get David to apologize to you because - Do you want it in writing or do you want him to come talk to you?" And Chester said, "I don't want either. David doesn't have to do anything." He said, "It's fine. As long as he leaves me alone, I don't care about him doing anything more about it. I don't want him to do anything. I just want to leave it alone." So, I told him, "No, I'll get David to apologize." "No, no. I don't feel that's necessary. I'd just as soon leave it alone." So, that's where it was left. And then I've had several conversations with David - urn about this issue - urn - because he remains very upset that Chester continued to challenge his integrity as a physician. And that's he's not alone in that issue. That's surfacing as a part of a bigger picture that I'm dealing with in a separate way. But - um - I then - somewhere along this line I did go talk to Athavale.

MICHAEL EWALD:

Oh, okay. Thank you. And what did Dr. Athavale say?

DR. KOLB:

Dr. Athavale confirmed the event. He said David did pull on his tie - did pull on his tie firm - it was hard. He said he really jerked on him. And - urn - so that's all I really needed from Athavaleconfirmation that this event really occurred. Urn - and I did not ask Athavale if Chester was verbally abusing or saying things. I did not get into that. All I did was ask Athavale what happened and for him to tell me if this event occurred. I just wanted a confirmation that a third party had seen this as it had been described to me.

MICHAEL EWALD:

One of the descriptions of the incident is that when Dr. Jadwin reached and took hold of Dr. Lau's tie, he then stepped back out of a room into the hallway, approximately three to five steps. Did you hear anything like that? Did that come out of anybody's report to you of the incident?

DR. KOLB:

Urn - maybe yes and no, because I know this did occur in a room, hallway kind of situation. Did someone tell me that Jadwin pulled Lau out of a-

MICHAEL EWALD:

We have - you know - it could be one where you grabbed the tie to get somebody's attention. Another is to step backwards and pull somebody with the tie.

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DR. KOLB:

Well, I think: David did say that he grabbed his tie and tried to pull him to come down to the Pathology department with him. He said - you know - his action was to grab his tie and say, "Come on down and I'll show you - I'll show you the stuff." So, did I ask David, "Did you drag him down the hallway?" No, but in essence, I think: the event was that David said what he was trying to do was grab his tie and say, "Come on down to the - " yeah - "Come on with me." He was trying to bring him down to the Pathology Department to show him the slides to prove to him that there was nothing there. So, there's probably some truth to that. But, I did not ask specifically, "Did you drag him?" But he did pull his tie and was attempting to say, "Come on down to the Pathology Department with me." So, I would assume he could have very well stepped back.

MICHAEL EWALD:

And just to make very sure in your discussion with Dr. Jadwin, Dr. Jadwin did admit to you that he pulled Dr. Lau's tie?

DR. KOLB:

Correct.

MICHAEL EWALD:

Not a badge? Not any other article of clothing? His tie.

DR. KOLB:

It was his tie.

MICHAEL EWALD:

Okay.

DR. KOLB:

It was his tie. And he - I said, "Did you touch him?" "No. Ijust grabbed his tie."

MICHAEL EWALD:

Well, I want to thank: you very much. The time is 9:42 and the interview is concluded. Thank: you.

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INTERVIEW WITH ERIN BALDWIN October 10, 2003

MICHAEL EWALD:

It's October 10,2003, and approximately 12:07 p.m. I am here with Erin Baldwin, a medical student. With me also is Linda Nipper, Hospital Employment Specialist. And I guess I'll just ask you on August 9, 2003, there was an incident involving Dr. David Jadwin and Dr. Lau and can you tell me what you saw?

ERIN BALDWIN:

What I witnessed is that I went with Dr. Jadwin to the Department of Radiology. He wanted to - Dr. Jadwin wanted to discuss with Dr. Lau some issues about a study that was being done by the Department of Pathology concerning bi-needle aspirations in the hospital. Dr. Lau subsequently became upset with the information being presented to him and was expressing himself in a very loud voice. Dr. Jadwin attempted to get him to lower his voice - to keep the conversation between those two. That was my impression of what had happened. And, because Dr. Lau continued to express himself in a loud voice, Dr. Jadwin then led Dr. Lau out of the Department of Radiology by assisting him with his tie out the door.

MICHAEL EWALD:

So, he pulled his tie and pulled Dr. Lau out of the Radiology room into the hallway.

ERIN BALDWIN:

Yes. I wouldn't say that it was a forceful pull. It was more leading him out. It didn't appear to me that Dr. Lau was resisting or there was a forceful pull on the neck. But, just a leading out of the area that we were in.

MICHAEL EWALD:

Did you have the impression that Dr. Lau anticipated that that would happen and was not surprised that he was being led out?

ERIN BALDWIN:

I'm not sure-

MICHAEL EWALD:

Okay.

ERIN BALDWIN:

- if he anticipated it.

MICHAEL EWALD:

Alright. What did Dr. Lau do as he was being led out into the hallway?

ERIN BALDWIN:

He just seemed to allow himself to be led out. He wasn't resisting and at that point he had quieted down.

MICHAEL EWALD:

Okay. Was he talking as he was being led out?

ERIN BALDWIN:

I cannot recall like whether he was saying anything particular, but I do recall the tone in the voice had decreased. And, so, he was - 1-

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being led out and he didn't seem to be resisting or protesting. MICHAEL EWALD:

Did Dr. Jadwin let go of the tie when he got out to the hallway?

ERIN BALDWIN:

I did not witness anything after being led out of the room. I actually remained in the initial area and there was another radiologist there - I believe it was Dr. Athavale - but, I'm not certain - and I remained in the radiology reading area with -

MICHAEL EWALD:

So, you didn't see - you saw him going out to the hallway, but you didn't see what happened after that.

ERIN BALDWIN:

No, I didn't see what happened after that.

MICHAEL EWALD:

Would you say - what I'm hearing you say is that Dr. Lau was his voice was raised - he was very excited and upset with Dr. Jadwin and Dr. Jadwin was being - was trying to calm things down?

ERIN BALDWIN:

Hush - you know - hush the loudness of the conversation because the tone in Dr. Lau's voice was such that it was-

MICHAEL EWALD:

Carrying everywhere.

ERIN BALDWIN:

- carrying out into the hall. I think people were walking by. think people were wondering what was going on.

MICHAEL EWALD:

How long.was this dialogue between them? How long did that go - about?

ERIN BALDWIN:

Urn - not very long. Probably a few minutes. But, I'm not certain. It wasn't a very long period. It was a short interaction.

MICHAEL EWALD:

Did either physician call each other names or use foul language or say anything inappropriate? Or was it just a heated professional exchange?

ERIN BALDWIN:

I don't recall any profanity being used. I would say it was morein my limited experience, I don't know what you call heated professional exchange. I guess that would be what I would categorize it - heated professional exchange. I didn't hear any profanity. There wasn't any profanity.

MICHAEL EWALD:

Did you hear either physician call the other incompetent?

ERIN BALDWIN:

I don't remember. I don't remember specifically what was said.

MICHAEL EWALD:

Okay. Urn -let's see. And did you talk to Dr. Athavale about this?

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ERIN BALDWIN:

I think when he had them led out the door, we both were surprised. That's - I remember looking at him with a surprised - you knowsort of surprised at what had just happened. I think I stated to him that I was just a medical student. And I think he thought that maybe I was waiting to ask him a question about a film, but I told him I was just a medical student in Pathology. And then, he may have said like one other word and I think I just then walked back to the Pathology Department.

MICHAEL EWALD:

Did you walk back with Dr. Jadwin?

ERIN BALDWIN:

No.

MICHAEL EWALD:

Had Dr. Jadwin already left?

ERIN BALDWIN:

Yes.

MICHAEL EWALD:

Okay. Urn - did Dr. Jadwin when he took the tie - what did he say? Did he say anything?

ERIN BALDWIN:

I think he said, "Come here." I'm not sure. I can't say for certain what was said. I don't know whether he said, "Come here" or - I don't know.

MICHAEL EWALD:

Okay.

ERIN BALDWIN:

I can't remember.

MICHAEL EWALD:

Alright. That's fine. That was a couple of months ago.

ERIN BALDWIN:

Yes.

MICHAEL EWALD:

So, you were surprised to see this happen and everyone - were there other people who saw and heard this?

ERIN BALDWIN:

I believe there was other people that heard this and Dr. AthavaleifI'm recalling this - was the radiologist. He was sitting right there with us. So, it was Dr. Athavale sitting at the radiation reading table, myself, Dr. Jadwin, and Dr. Lau. But, I believe other people heard.

MICHAEL EWALD:

And from where Dr. Athavale was, was he in a position to see what went on out in the hall? Or was he sitting with you or right next to you?

ERIN BALDWIN:

It's possible he may have seen. I can't comment on - I guess - the geometry of it, it is possible that he may have seen, but I don't know. And I don't remember him -like - particularly commenting on that -looking directly outside. I remember him -3-

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asking me, "Can I help you?" MICHAEL EWALD:

Afterwards?

ERIN BALDWIN:

Yes, because I was standing there.

MICHAEL EWALD:

Probably with your mouth open, right? .

ERIN BALDWIN:

So-

MICHAEL EWALD:

Urn - what did you think of the whole incident?

ERIN BALDWfN:

Urn - I was surprised at the incident. happened.

MICHAEL EWALD:

Did you think it was a natural type of thing that would occur in a business setting?

ERIN BALDWIN:

I'm sure it does occur in a business setting, but I had never witnessed this type of exchange before.

MICHAEL EWALD:

Did Dr. Jadwin talk to you about it afterwards?

ERIN BALDWIN:

Not that day, but I believe one or two days later he did talk to me about that.

MICHAEL EWALD:

Okay. What did he say?

ERIN BALDWfN:

He just made some comments about the study and he said something - I can't remember - and this is why I led him out of the room - this is why I led him out by the tie. But - he didn't-

MICHAEL EWALD:

So, he admitted that he had pulled his tie? There's no question -

ERIN BALDWfN:

Yes, he did.

MICHAEL EWALD:

Urn - did you go down there with Dr. Jadwin?

ERIN BALDWfN:

Yes.

MICHAEL EWALD:

So, you saw how it started?

ERIN BALDWIN:

Yes.

MICHAEL EWALD:

And Dr. Jadwin was pointing out some kind of problem with specimens or whatever to Dr. Lau and it's then that Dr. Lau became increasingly excited?

ERIN BALDWIN:

Yes.

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MICHAEL EWALD:

And then started speaking loudly and forcefully to Dr. Jadwin?

ERIN BALDWIN:

Yes, that's what happened.

MICHAEL EWALD:

Okay. Do you have any questions?

LINDA NIPPER:

I think the only question I would have is when you witnessed Dr. Jadwin and Dr. Lau talking, was Dr. Jadwin also loud? I mean did he raise his voice as they were talking?

ERIN BALDWIN:

It's - not to the same level. I believe it did get - I wouldn't say equally loud, but it seemed to me that Dr. Jadwin was trying to quiet the situation down. He may have - his voice may have escalated a little bit when Dr. Lau was yelling, but I can't say whether it was exactly the same level that -

LINDA NIPPER:

Do you know why Dr. Jadwin was leading him out of the room?

ERIN BALDWIN:

I think to quiet him down - to say "come over here and discuss this away." I thought he was leading him into another room where they were going to talk privately. That's what I thought. That's what I thought he was doing.

MICHAEL EWALD:

When -let me - when he was doing that -let me just - don't worry, I won't hurt you. Was his neck - was Dr. Lau's neck kirid of like following there? Or was it just kind of like a "come oncome on with me" - you know - type of thing?

ERIN BALDWIN:

It wasn't-

MICHAEL EWALD:

I mean was he trying to stop - or was he trying to pull back - Dr. Lau was trying to pull back? And he was being really led against his will?

ERIN BALDWIN:

That - I did not witness - I witnessed Dr. Lau just going along with him and he - actually it didn't seem to be pulled - it was more the tie just hanging down and it was the lower part that was -

MICHAEL EWALD:

So, he grabbed the very lowest part of it?

ERIN BALDWIN:

Not the very lowest, but towards the end.

MICHAEL EWALD:

Uh-huh.

ERIN BALDWIN:

And it wasn't a forceful, jerking-

MICHAEL EWALD:

It wasn't forceful-

ERIN BALDWIN:

It wasn't - "Oh, come on." -5-

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MICHAEL EWALD:

Okay.

ERIN BALDWIN:

It wasn't like this. It was - the tie was down and - just leading him . out and Dr. Lau then followed.

MICHAEL EWALD:

So, it's fair to say because we're seeing this that it was not a forceful thing where Dr. Lau was struggling and following-

ERIN BALDWIN:

No.

MICHAEL EWALD:

- but struggling. He didn't appear to be struggling, he just kind of docilely followed the tie -

ERIN BALDWIN:

Yes.

MICHAEL EWALD:

- where the tie was going.

ERIN BALDWIN:

Yes. He did not seem to be physically resisting or resisting at all. He just seemed to go along and then he quieted down and -

MICHAEL EWALD:

Okay. Is there anything else you remember from this?

ERIN BALDWIN:

That's about all that I remember.

MICHAEL EWALD:

Okay. Well, have you ever seen anything like thisbefore?

ERIN BALDWIN:

No.

MICHAEL EWALD:

Okay. Have you seen physicians fight before?

ERIN BALDWIN:

No.

MICHAEL EWALD:

Okay.

ERIN BALDWIN:

Just - you know - discussing things - you know - but -

MICHAEL EWALD:

Sharing opinions -

ERIN BALDWIN:

Yes.

MICHAEL EWALD:

- maybe forcefully.

ERIN BALDWIN:

Yeah, stating their opinions. Stating it strongly. Never like that before.

MICHAEL EWALD:

Okay. Well, thank you very much and the interview is over at 12:22 p.m. And I want to thank you very much for your cooperation.

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INTERVIEW WITH DR. NADER! October 10, 2003

MICHAEL EWALD:

This is-

DR. NADERI:

Have you tape recorded Dr. Lau?

MICHAEL EWALD:

Yes.

DR. NADER£:

And also Dr. Athavale?

LINDA NIPPER:

Not Dr. Athavale.

DR. NADERI:

He said no?

MICHAEL EWALD:

No, he didn't say no. We couldn't get the recorder to go. And we recorded Dr. Kolb, too. Dr. Lau was very forthcoming about the incident and -let me just start by saying this is October 10,2003. This is an interview with Dr. Naderi. He has given permission to record this interview and I'll just start by asking you, when the incident between Dr. Jadwin and Dr. Lau occurred, when was the first time you heard about it and who told you and what did you learn about it?

DR. NADERI:

Well Dr. Lau mentioned it to me and I don't know exactly ifit was the same day or the next day, or whenever it was - that this had happened and he was embarrassed because Dr. Jadwin did it in front of - in the department and it was in front of others - and he was very embarrassed by that. I said, "Okay, as the chairman you notified me. I'll talk to Pete and I asked him ifhe has talked to anybody else or not and he said well, he had gone to Dr. Kolb immediately and Dr. Kolb was not in his office. He went back again and - a second time - so I don't recall that he finally could connect with him or not and maybe he has told you ifhe-

MICHAEL EWALD:

They did have a discussion.

DR. NADERI:

And, well I said, "Fine, then I'm sure they will take care of it." But, I think it was the following day or whenever it was - the next day - he gave me that letter. And he said he really doesn't want this to continue. He thought that Dr. Jadwin might (inaudible) habit or personality or something. He might do it to almost anybody and he thought he had to talk to somebody, so he realizes that it's not a good habit and that's (inaudible). I mentioned it toduring my meeting with Pete - you know - I mentioned it to him. I think he was aware of it and -

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MICHAEL EWALD:

What did Dr. Lau specifically tell you happened?

DR. NADERI:

Well, as I recall, it was about a couple months ago, right?

MICHAEL EWALD:

It was August 9th •

DR. NADERI:

August 9 th ? September, October - yeah - about two months - and he said he grabbed him in the middle of the room here in the reading room and apparently he grabbed him by his tie and he pulled him across the room here while some others were also here and says he tried to talk to - Dr. Jadwin's a tall man and a strong man - so he just stopped him - just dragged him out of the room, through the door, to the hallway and then he said also - anyway, he felt that he had difficulty - almost had difficulty to breathe because the tie was around his neck - was fastened to his neck and so on. And he wanted to pull himself back, but Jadwin was - Dr. Jadwin was strong and was still pulling him. So, as I recall, that's the way he told me - (inaudible) - from the room into the hallway - and then whatever happened after that -

MICHAEL EWALD:

Has Dr. Lau complained of any pain or anything else after that?

DR. NADERI:

He just had a pressure around his neck - (inaudible) - he felt that he was going to have some breathing problem and that he couldn't get himself (inaudible) -

MICHAEL EWALD:

As department chair, what do you feel would be an appropriate response or action by the hospital to this incident?

DR. NADER!:

Well, I don't know. I thought Mike, I was concerned about my duty. My duty was to inform the responsible people in the hospital, the medical staff. And I tried to be fair - give a chance to the hospital officers - so they were both notified. I thought maybe that Lau should have a fair response within a timely basis, so that he knows we are taking this seriously and so on, but based on - he's told me he's not received anything in writing from anybody up to now. I thought maybe the medical staff office also should know that if anything they should do - I really don't know when two physicians are like this, I am sure one part of it as County, Personnel should take action like they are doing now. But I don't know if (inaudible) or medical staff should or should not do anything on top of that or - so, I didn't know. So, after no action and no response in writing - so, I notified medical office - medical staff - which was late - you know - it was one and a half months or something -like that - and that's why I thought there should be something - some response - somehow that he's assured that this not going to happen to him or anybody else.

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MICHAEL EWALD:

Well, we've been asked recently to investigate this and we are going to be preparing an investigative report that will go to Dr. Kolb, at his request. One final question I have is - there's some question as to what led up to this incident. Did Dr. Lau - or have you heard that there was any sort of professional disagreement that was going on? Not that that would absolve anybody of pulling somebody's tie, but was there some sort of words being exchanged or some other problem?

DR. NADERI:

Since I wasn't here at that time, I don't really know what Dr. Jadwin was doing first of all in this department. Suppose it was something that he was here, but I don't know what was that. I don't know was a discussion between him and others and or he just came to talk to Dr. Lau for whatever reason or to talk to somebody else. He not being clinician and usually we don't have that much personal patient relationship between Radiology and Lab. As you just saw, the other physicians they come and review their x-rays here - we have a lot of relationship with clinicians, but not really much between us - for example, (inaudible) very seldom do we go to the Lab for anything that we need and very seldom if he needs anything in X-ray - recognizing this is a hospital, of course, we have a relationship and so on, but we don't have that much direct relationship to go and visit with others - but again I don't know what the reason for his visit or he came just to talk to Dr. Lau or Dr. - somebody else. I don't kriow. I don't know what - What do you feel now in this situation - that's for my education - what happened between two physicians. Is that part of Human Resources - should it have been medical staff- maybe it also should have something to do with this - or not. We're talking how should we take care of this or what's my role in this - so, what do you think?

MICHAEL EWALD:

Well, we have been asked to investigate it because of the allegation of workplace violence - of an inappropriate contact - the allegation of inappropriate contact between two people working here who are actually County employees. And so we are investigating that as per the County's policy and a report will be prepared for the County. We have to submit a report and we also will be submitting a report to the Medical Director. What he wants to do with it at that time, or what Peter wants to do with it, as far as sharing it with anyone, that's up to them. Our report will only contain findings and conclusions. We do not make recommendations. Based on our findings and conclusions, then they can determine what they want to do from there.

DR.NADERI:

I see. So, (inaudible) according to bylaws of the hospital and the staff.

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MICHAEL EWALD:

I'm not aware of any bylaws, but after the report is done, how that's handled is fine. We attempt to give as unbiased and neutral investigation as we can, and let the facts speak for themselves.

DR. NADER!:

Right. I know you have done it before. I know that Steve has done it before. I know that you do an excellent job - you're unbiased and I really appreciate it. So, that was the thing - because now it's between two physicians, even though they're both employees - as compared to two non-physicians - [didn't know how we-

MICHAEL EWALD:

Well, we recently investigated one between two physicians down in Emergency Department. There was allegations which were proven to be fa~al of inappropriate contact between two physicians.

DR. NADERI:

Was it staff or was it staff and residents?

MICHAEL EWALD:

It was two residents.

DR. NADER!:

Right. So, there's a little bit of difference, but it's still not the same as two physicians.

MICHAEL EWALD:

So, we do have - it's my understanding that that had already been agreed to that if there were any types of complaints lodged that a neutral third party would investigate it and provide the facts. How it's handled from that point, it's not my- it's not my job to specify that.

DR. NADERI:

No. I didn't know - I know - or at least Isee it as my role - I have to explore the policies - both sides - medical staff and - I did at the time.

MICHAEL EWALD:

I think you acted appropriately.

DR. NADERI:

But, Ijust want to make sure that I don't fail in myresponsibilities~ That's my concern is to take it on or how he didn't receive anything back - but still I played it low key. I didn't - you know I just waited long enough to see what - and I'm glad you are doing this, so at least somebody will be informed at least that it's not the proper way-

MICHAEL EWALD:

Well, there will be a report and it will be delivered to Peter and Dr. Kolb and - but not shared with anyone else until they've had a chance to read it and determine what to do.

DR.NADERI:

(Inaudible) - as I recall what I think was in his letter was also another person with Dr. Jadwin who was rotating in his department.

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MICHAEL EWALD:

We've located that individual and she will be interviewed.

DR. NADERI:

Oh, good. Then I think that's the best we can do.

MICHAEL EWALD:

Thank you very much for your time.

DR. NADERI:

r appreciate it.

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INTERVIEW WITH DR. JADWIN October 17,2003

MICHAEL EWALD:

Okay. It is October 17,2003. This is an interview with Dr. David Jadwin. Linda Nipper is also present. And we'll just start. Actually, I think you know what the allegation and the complaint was from Dr. Lau. Perhaps you could tell us from your perspective what occurred and we'll have some questions maybe afteIWards, but why don't you just tell us what happened, what immediately led up to that, and what actually happened, and what happened afteIWards.

DR. JADWIN:

I was - I went to the Radiology Department with a medical student to look at some sort of case - uh - I can't remember what it was. And the day before we had had a quality management committee meeting and one of the problems that's been at this hospital probably for years is the collection ofbi-needle aspirations specimens by CT guide-ins and part of my coming here - they're sort of cavalier and a lot of times they would just sort of look at it and say well, maybe it's adequate and go back to the laboratory and they generate a report that maybe says something to the fact that the specimen was limited - did not - unsatisfactory for evaluation. I came on board and started scrutinizing these more thoroughly and we were having a lot of problems with getting adequate samples to the point that when I would go down to the CT Scan, the radiologists would leave before I even got there to tell them it's adequate. And so -

MICHAEL EWALD:

So you went down there for the purpose of discussing that issue?

DR. JADWIN:

No. Actually I was just trying to lead up to the circumstances. So, the quality management committee had been looking at this as a problem and of course the radiologists were quite defensive about all of this and we started looking at some data on a spreadsheet, looking at adequacies and malignancies and I had done a preliminary study which I was going to share with Dr. Wells. So, I went down to look at the - I believe, as I recall - I went down to look at some sort of radiology study with a student and I was also going to share this data with Dr. Wells. So, I went into the Radiology Department and asked for Dr. Wells. And they said he was in another part of the Radiology Department and I was going to go over there, but Dr. Athavale was there and I know he was concerned with this data So, I should have just gone to see Dr. Wells, but I showed the data to Dr. Athavale and basically it showed that from 1996, which was well before I came here, the adequacy and malignancy things had changed like this so there was

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no recent trend. And I thought Dr. Athavale was a pretty reasonable person who would at least look at this in a way and immediately they started getting defensive and Dr. Lau came from another part and literally started screaming at me. He said, "I'm getting tired of you changing all the data and making" - I'd never talked to him before in my life, and he's accusing meMICHAEL EWALD:

You'd never talked to him at all before?

DR. JADWIN:

About this-

MICHAEL EWALD:

About that.

DR. JADWIN:

About this - any type of data thing - and he started accusing me of always changing the data, and screaming. Literally being very hyper. I'm sure maybe you've seen how he behaves, but in his characteristic manner, and to the point where he was just irrational. And so finally I said - I was just trying to say this was preliminary data. We're looking at all the data, etc. And he just went on and on and on, and finally I said, "Calm down. Calm down. Calm down" - like this and I got him to calm down to the point where he literally sat in a chair and was almost whispering, but he was still agitated. And I tried to explain to him that this was just preliminary data that - you know - we're collecting all the data available - radiologists, needle, citing all this type of stuff - and we're putting it into a spreadsheet to be looking at it, and he started becoming agitated and various other types of things. He says - and Dr. Athavale was a little defensive, too. I was trying to mention to him that - you know - negative cytology means absolutely nothing which is what the textbooks will tell you, but they're under the impression that if you get a negative cytology then you don't have any disease. And, so -

MICHAEL EWALD:

Did your voice -

DR. JADWIN:

No. I was very calm the whole time.

MICHAEL EWALD:

You were calm the whole time?

DR. JADWIN:

Calm the whole time. I never raised my voice - at any rate -

MICHAEL EWALD:

So, then what happened? He was seated-

DR. JADWIN:

Yeah, he was seated and he was going on and he was just - I don't know if you've had any conversations with the man, but he just doesn't listen - you know. He just goes off on tangent and gets very excitable. I probably should have just walked away and

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realized that communication with this man is virtually impossible. And he started up again by saying, "Why don't you do this? Why don't you do that?" He wasn't hearing a single word that I had said - a preliminary looking at complete information - all that sort of stuff. So, literally- I don't remember ifit was his name tag or his tie - but I said - at that point Ijust got so frustrated with trying to verbally communicate with him, I said, "Let's go down to my office" - I literally went something like this - "Let's go to my office and I'll show you the data sheet." And Dr. Athavale couldn't possibly have seen what happened. He was sitting back here and Dr. Lau was here and I was in the middle of this. And we literally took one or two steps and Dr. Lau (sound of movement) went straight across the hall like this and he's like this MICHAEL EWALD:

And he appeared - he got up against the wall?

DR. JADWIN:

In the door - he was terrified - he was terrified. And he wasn't terrified of me. He was terrified - I think - of the data that I was going to present to him. And, so, he said - well, I said, "Come on down to my office and look at the data" - just like that. "Come on down." "No, I can't." Now, I have to give you a little bit of background on this. This is not the first time that he's done something like this to me. Urn - in one of these instances where we went down to the Radiology Department and they collected the sample, left the room, and the patient was coming off of the CT Scan. And I get down there and the sample is unsatisfactory for evaluation. So, I walk down to Dr. Lau and I said, "Well, Dr. Lau, I'm sorry, but maybe we'll get something on the permanence, but on the preliminary it was just necrotic" - you know - or whatever it was - and - you know - "I'm not sure if we're going to have an adequate specimen." I said, "Would you like to come down and look at the slides with me?" Because for a year and a half I've been trying to get these guys to meet with me to discuss this. I've met the surgeons and various other people. These people - I'm not sure they have regular meetings. It's been very frustrating for me because I go down there and try to get them as a group to talk to them about how best to collect a sample. And he said, "What needle was in the ." And, "I know I got a good sample." And I said, "Come on down to the laboratory and look at it." "No. I'm too busy. Too busy." So, I left and immediately, he goes down to Kolb's office and complains about the pathologyyou know - and so Marv brings him down finally to my office where we look at the slides. And there's nothing on the slides. All of our stuff is double reviewed. Recently, we've been sending everything to UCLA and they agree with me. So, he's sitting there with Kolb and the microscope and we've got two sets over here, _ and he says "What's that down there? What's that? It's

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cells." And I said, "Well those are red blood cells, doctor." And Dr. Lau said, "What's that I notice over here?" And he doesn't even know what he's looking at. And, so this happened at least once and possibly two times where I've asked him to come down and review things and they just won't have any part of it. To me, it's, quite frankly, because they don't know what they're doing. Yes, they know how to put a needle into the lesion, but putting a needle into the lesion is not the same thing as getting the sample into the needle, pulling it out and putting it on the slide and getting a good sample. And that's what they don't understand. ',!:,,,

MICHAEL EWALD:

Let's go back to the tie pulling incident, okay? You are testifying that you did pull his tie - you did take his tie -

DR. JADWIN:

Tie and/or name tag - I don't remember what it was -like this.

MICHAEL EWALD:

Okay. The witnesses are saying and he's says that it was his tie. So, you pulled his tie and did you pull him from one room to the other or out into the hall?

DR. JADWIN:

No. I don't think it was more than one or two steps.

MICHAEL EWALD:

Okay.

DR. JADWIN:

It was like this. It was a like a light - like a tug on - "Come down to my office and look at this stuff."

MICHAEL EWALD:

Okay.

DR. JADWIN:

And I did it because in the past he's not done it and I was hoping he would-

MICHAEL EWALD:

What did you expect when you took his tie and started to pull him behind you? Were you pulling and backing up?

DR. JADWIN:

No. No. No. No. He was like - he's sitting here-

MICHAEL EWALD:

Okay. He's seated.

DR. JADWIN:

And I said, "Come on down to my office" - like this

MICHAEL EWALD:

Okay.

DR. JADWIN:

Basically, I have two to three fingers -

MICHAEL EWALD:

Okay. And then he followed with that -

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DR. JADWIN:

He stood up one or two steps and then charged away.

MICHAEL EWALD:

Charged away. Okay. And - urn - did he pull the tie back or did you-

DR. JADWIN:

No. There was nothing - if I grabbed his tie hard - you've seen him and me - there's no way he would have gotten away. It was like this - "Come up tD my office."

MICHAEL EWALD:

So, what you're showing - since I'm not videotaping this - you're showing that you took three fingers - four fingers - three fingers and a thumb and put it on his tie and gave a tug. And then you're testifYing that he overreacted to that - maybe took a couple of steps - got out of his chair - took a couple of steps and ran into the hallway-

DR. JADWIN:

Ran out of the room, out into the hallway, into the other doorway. And Dr. Athavale was behind me, so he had no view of what was transpiring. The medical student was standing over here, so she would be the person who would -

MICHAEL EWALD:

Right. She's been interviewed.

DR. JADWIN:

Okay.

MICHAEL EWALD:

As well as Dr. Athavale, too. And the - what did you expect - this was not a - you're saying this was not an aggressive gesture to hurt him or anything, but that it was to - why did you take his tie?

DR. JADWIN:

I wanted to lead him into my office to see the data. Talking to him was -

MICHAEL EWALD:

You mean you would have led him all the way down the hall ifhe

DR. JADWIN:

Not necessarily. I wanted to get him up and out and get him movmg. It was sort of an encouragement type of thing.

MICHAEL EWALD:

Okay.

DR. JADWIN:

You know - um-

MICHAEL EWALD:

Okay. Do - is this something you have done before to him or to anyone else?

DR. JADWIN:

Never. Never in my life.

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MICHAEL EWALD:

Is this something you would do again?

DR JADWIN:

No.

MICHAEL EWALD:

Okay. Do you regret doing it?

DR JADWIN:

Urn - I'm sort of surprised that it has gotten to this level. Urn - I regret having even gone past one sentence of conversation with him because I firmly believe it's impossible to communicate with this man on a professional basis.

MICHAEL EWALD:

Okay. Do you regret pulling his tie?

DR. JADWIN:

Yeah, at this point I do.

MICHAEL EWALD:

Urn - have you had any discussions about this with him or have you written to him or has there been any communication between you about this subject?

DR. JADWIN:

There was one time when he was walking out of the hospital and I was walking out at the same time. And I quite frankly looked at him very close and I said, "I don't think you're an honest man." And I walked out ofthe hospital. Because I read that letter he wrote and I orange highlighted some things on there that were just outrageously stretched or even factually untrue, I think.

MICHAEL EWALD:

In the letter, what do you feel is not factually true?

DR. JADWIN:

Well, you know I don't have that letter any more. It was some sort of something or other -

LINDA NIPPER:

I have the letter here.

DR. JADWIN:

If you have a yellow highlighter and can make a copy 0 fit -

MICHAEL EWALD:

Well, if you'll just point out the parts that you feel are factually untrue.

DR. JADWIN:

"Dr. Jadwin and I were debating over some pathology data." There was no debate about it. The man was yelling and screaming at me, and was hysterical.

MICHAEL EWALD:

Okay.

DR. JADWIN:

Urn - "Dr. Jadwin insisted that I go over to his office to look over more data." I wanted him to come to the office, and -

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MICHAEL EWALD:

Did you invite him to come to your office?

DR. JADWIN:

I said, "Come" - when I did this, I said, "Come and see the data."

MICHAEL EWALD:

Okay.

DR. JADWIN:

Because verbal discussion at this point was useless. I was hoping and then actually when I left - when he refused to come, I went down to my office. I brought the spreadsheet and I showed it to the people. And then I went - the funny thing about all this is that I then went to Dr. Wells - after all of this - and showed him the stuff and he was perfectly fine with it. He saw it and saw it as a reasonable thing and made no comments. He even commented that maybe part of the problems were the needles that they were using, because one of the things is a cutting needle and aspiration needle, and they've been using cutting needle and I've been trying to get them to use an aspiration needle and etc. So - "I told him I could not leave the department because I was attending to a patient whom I was going to perform an angiogram." Well, I think this would have only taken a couple of minutes. But, this is characteristic of his behavior when he is confronted with trying to deal with something objectively, he runs and hides.

MICHAEL EWALD:

Do you recall him saying that to you?

DR. JADWIN:

Yes, he did. But, I'm not sure that two minutes would have made much difference one way or other. I mean, he wasn't even invited into this conversation. I was showing the data to Dr. Athavale, who was defensive because, quite frankly, he's one of the people that hasn't been doing the job of collecting the stuff. And Dr. Lau came from out of nowhere and started screaming at me about manipulating the data and he was an expert in statistics - that's something I didn't mention before - and I didn't know what I was doing. He knew everything about statistics and I was manipulating the data to show them in a bad light. "He further insisted." I said, "Come on down to my office and look at the data." If that's "insisting" then that's "insisting," but I don't think that's what"He grabbed me by the tie." Some of this seems a little bit out of place. "He grabbed me by the tie with his hand and dragged me for several feet." I didn't drag him for several feet. I got him up to a standing position - one or two steps and he took off. "I warned him not to do that any more." I'm not sure ifhe said anything to that effect.

MICHAEL EWALD:

You're not sure ifhe warned you not to do it.

DR. JADWIN:

Yeah, I don't-

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MICHAEL EWALD:

You don't have any recollection of that?

DR. JADWrN:

No. I tell you, I was quite peeved with the man because I walked over there in a way to show him data. He's been out there saying different things to medical staff about the problem's actually my problem and not his problem, when I think we're actually in the process of collecting all stuff and sending it to UCLA. I think that they're going to substantiate the fact that we haven't been getting good material. And, so I've taken this as a personal assault on my integrity and my character and then he started accusing me of manipulating the data and - urn - you know -

MICHAEL EWALD:

So, would it be fair to say that when you took hold of his tie, you were upset?

DR.JADWrN:

I was upset, but I was in control. I mean, I hadn't raised my voice to any extent and I think he made a comment during this "debate" which was not even closely a debate that this data did not mean anything. And I said, "Well, I think it does mean something." And I said it with that sort of emphasis - "Well, I think it does mean something," but that was the most of anything that I ever said in a way. I was trying to do this in a professional educational manneryou know - talking with them. And it sort of reflects my frustration for a year and a half of even trying to meet with these people, or having even some type of professional interaction to help them do a better job.

MICHAEL EWALD:

Okay. Urn - alright - so it is - what I've heard from you is that there was a discussion between you and Dr. Lau and Dr. Lau, according to you, became - his voice raised up, he became pretty loud and then he sat down - quieted down - and at that point you reached over, took his tie, started to pull his tie so that he began to come up out of his seat, taking one or two steps and then he reacted by - with you dropping the tie, or somehow getting the tie back -

DR. JADWIN:

Well, he just pulled way. There was no tension to it.

MICHAEL EWALD:

So, he just pulled - did he pull the tie out of your grasp, do you . think?

DR. JADWIN:

Well, he wouldn't have had to try hard. I was holding it with-

MICHAEL EWALD:

So, he pulled it back and then went out on his own -

DR. JADWIN:

Ran out into the hallway, ran across the hallway and into the other room.

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MICHAEL EWALD:

He was running?

DR. JADWIN:

Running. He was running.

MICHAEL EWALD:

Running out to the hallway where he appeared - he went against the wall and acted as though you were going to -

DR. JADWIN:

In the doorway.

MICHAEL EWALD:

Oh, in the doorway.

DR. JADWIN:

He was in the doorway like this.

MICHAEL EWALD:

Okay. Alright. (Inaudible)

DR. JADWIN:

He had literal terror on his face.

MICHAEL EWALD:

Terror. Okay. And - it was then-

DR. JADWIN:

Which caused me - I was sort of dumbfounded when I saw this reaction. So-

MICHAEL EWALD:

So then he got out of your way and you just left without any further incident.

DR. JADWIN:

No. At that point, he went over there and I said, "Come on down to my office and look at the data." And he said, "No. I'm too busy." Now, he may have even said that twice. He said, "I've got to do an angiogram. I can't." At that point, I just walked down to my office. I got the spreadsheet printouts that we have and I went over it with Dr. Athavale. He was gone somewhere else. Dr. Athavale nodded and - I mean - I'm a very compulsive person. We collected everything. There's nothing left to question on this.

MICHAEL EWALD:

So, actually, you pulled the tie, he got up a little bit and then he went over and he went back in, sat down and then you asked him again ifhe wanted to come down?

DR. JADWIN:

Oh no, no, no. Okay. I tugged him up out of the chair -like "come down to my office" - I said, "Come down to my office and see this data." He immediately ran - tugged away - ran out of the room, across the hall in the crouching position. I walked out into the hall and said, "Come down to my - why don't you come down to my office and look at the" - and he said, "I can't." And he might have even said this twice. "I've got to do a procedure."

MICHAEL EWALD:

Okay.

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DR. JADWIN:

Now, he had to do a procedure before all this started and it didn't stop him from taking time away from the procedure to do this, but when I asked him to do the data, he wouldn't. Then I left and went to get the spreadsheet data to show them the information we were collecting.

MICHAEL EWALD:

He wasn't there when you came back?

DR. JADWIN:

I don't remember ifhe was there, but I did show it to Dr. Athavale and I don't remember seeing him. Even ifhe was there, I wouldn't have discussed it with him. But I showed Dr. Athavale, who sort of nodded his head a little bit. And I went to show the information to Dr. Wells, who was perfectly happy with it.

MICHAEL EWALD:

Okay.

DR. JADWIN:

The type of response that I would have hoped that the other two· would have been able to display.

MICHAEL EWALD:

Okay. Vh - is there any other thing that you'd like to tell us about this?

DR. JADWIN:

Well, again, his behavior was almost hysterical and I had to spend quite a bit of time to just get him to calm down and I said, "Dr. Lau, calm down. Calm down. Calm down." Literally, to the point where I sort of backed him into his chair and over a period ofmany seconds, he finally calmed down to the point where you could have a conversation with him, because you couldn't even have a conversation with him.

MICHAEL EWALD:

Do you feel- yet you don't really see your actions as all that professional either?

DR. JADWIN:

I don't - well, I'm not sure - you know - Dr. Kolb's first response would have been my first response when Dr. Lau went there and he says, "So, come on Chester. He was just kidding with you" - you know. And that is the nature of the thing as I saw it. I was trying to get him to come to my office and review the material. But, I had zero ability to discuss it with him because of his behavior.

MICHAEL EWALD:

Okay.

DR. JADWIN:

There was nothing physically aggressive or hostile. I was a little peeved. I will say I was a little peeved, but I've never had this type of incident before. I never had to work with someone like this before and-

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MICHAEL EWALD:

Do you have any questions?

LINDA NIPPER:

No.

MICHAEL EWALD:

Okay. Good. Thank you very much. The conclusion of the interview is 10:24 a.m., October 17, 2003.

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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

EXHIBIT 55

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) Volume I ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

DAVID FRANK JADWIN, D.O.

17

Tuesday, January 8, 2008

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

DFJ1

Page 194 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 195 of 209 222

1

16:02:47

1 relationships with Dr. Abraham?

2

16:02:50

2

MR. LEE:

3

16:02:51

3

THE WITNESS:

4

16:02:54

4 professional.

5

16:02:59

5 her in a professional manner on -- on clinical

6

16:03:03

6 matters and in medical executive committee meetings.

7

16:03:07

7 Even when she said we have no confidence in the

8

16:03:11

8 pathology department, I did not respond but chose to

9

16:03:15

9 discuss that with her after the fact in confidence --

It's vague and ambiguous. On clinical matters, they were

From my perspective, I always treated

10

16:03:18 10 in -- in a quiet venue, rather than making a big

11

16:03:23 11 battle out of it in front of the department.

12

16:03:25 12 that's typically my style.

13

16:03:27 13 BY MR. WASSER:

14

16:03:27 14

15

16:03:30 15 others that she was not competent?

16

16:03:32 16

A.

In what way?

17

16:03:34 17

Q.

Using words.

18

16:03:36 18

19

16:03:37 19 argumentative.

20

16:03:39 20

21

16:03:41 21 she was clinically incompetent.

22

16:03:43 22 BY MR. WASSER:

23

16:03:44 23

24

16:03:45 24

25

16:03:48 25 Dr. Abraham to her face in a meeting with other

Q.

And did you ever tell her in the presence of

MR. LEE:

I'm sorry.

It's vague and ambiguous and

THE WITNESS:

Q.

And

I absolutely never said that

I don't know that you added the adverb. I'm just asking did you ever tell

DFJ1

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

Document 277-4

Filed 12/01/2008

Page 196 of 209 223

1

16:03:52

1 doctors present what she was not competent?

2

16:03:54

2

3

16:03:56

3 something competent to assess fine needle

4

16:03:59

4 aspirations, but I never would have crit- -- first of

5

16:04:00

5 all, I don't know what her competency level is, and

6

16:04:03

6 it's not my nature to make those types of criticisms,

7

16:04:09

7 especially in a professional venue.

8

16:04:12

8

9

16:04:15

9 where you're -- where you're trying to work through

A.

Oh, absolutely not.

I may have said

Now, in a mediation session where you're --

10

16:04:18 10 problems, that's a different issue.

11

16:04:21 11 impugned her clinical skills.

12

16:04:23 12 have thought that she was -- I would not have thought

13

16:04:27 13 that she had clinical problems with a couple of

14

16:04:31 14 sections -- exceptions that I know about.

15

16:04:34 15

16

16:04:37 16 unfit to be -- be head of the medical staff?

17

16:04:40 17

A.

Absolutely not.

18

16:04:42 18

Q.

Was your motive and interest in composing

19

16:05:00 19 the E-mail we see in Exhibit 573 primarily to salvage

20

16:05:06 20 the reputation of the pathology department and

21

16:05:09 21 yourself?

22

16:05:09 22

A.

No.

23

16:05:09 23

Q.

I think in one of the earlier E-mails we

24

16:05:18 24 have read today you -- you expressed the concern to

25

16:05:20 25 Mr. Bryan that other members of the medical staff had

Q.

But I -- I never

And in fact, I would

Did you ever tell Dr. Kercher that he was

DFJ1

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

Document 277-4

Filed 12/01/2008

Page 197 262 of 209

STATE OF CALIFORNIA ss. COUNTY OF KERN

I,

Sandra L. Edmonson,

a Certified Shorthand

Reporter in the State of California, Certificate No.

holding

7704, do hereby certify that

DAVID FRANK JADWIN,

D.O.,

the witness named in the

foregoing deposition, Volume I, was by me duly sworn; that said deposition was taken Tuesday,

January 8,

2008,

at the time and place set forth on the first page hereof. That upon the taking of the deposition,

the

words of the witness were written down by me in stenotype and thereafter transcribed by computer under my supervision; that the foregoing is a true and correct

t ~

transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action,

nor

1

f b

i .~

in any way interested in the result or outcome thereof. Dated this 21st day of January,

2008,

at

Bakersfield, California .

1

I

s~~~?at~~:.- 7~ WOOD & RANDALL (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 198 of 209

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

EXHIBIT 56

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

61

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9 10

F. JADWIN, D.O.,

) VOLUME II ) Page 96 Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) ) Defendants. ) __________________________)

11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

COUNTY OF KERN THROUGH PERSON MOST KNOWLEDGEABLE,

17

PHILIP LEE DUTT, M.D.

18

Tuesday, September 9, 2008

19

Bakersfield, California

20 21 22 23 24 25

ted by:

Susan R. Wood, CSR No. 6829

PMK DuttP2

Page 199 of 209 96

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

Document 277-4

Filed 12/01/2008

Page 200 of 209 232

1

12:13:46

1

due to a pathologist shortage and backlogs with

2

12:13:49

2

transcription.

3

12:13:49

3

4

12:13:52

4

5

12:13:55

5

A.

I think so.

6

12:14:16

6

Q.

You took a medical leave in 2007.

7

12:14:29

7

8

12:14:31

8

A.

No.

9

12:14:32

9

Q.

No?

Is that an accurate representation of what Dr. Gerry said at this meeting?

correct?

Is that

Because your mother was sick.

10

12:14:33 10

What happened?

11

12:14:35 11

12

12:14:37 12

13

12:14:45 13

14

12:14:47 14

15

12:14:49 15

16

12:14:51 16

17

12:14:52 17

18

12:14:54 18

19

12:14:55 19

20

12:14:57 20

21

12:14:57 21

22

22

23

12:14:59 23

THE WITNESS:

24

12:15:00 24

MS. BARNES:

25

12:15:01 25

You took a leave because one

of your parents got ill, passed away? A.

They both were ill.

I took family sick

leave, as I understand it. Q.

How did you -- I'm sorry. Okay.

How did you go about applying for

this family sick leave? MS. BARNES:

What does this have to do with

the PMK designation? MR. LEE:

I don't need to answer that

question. MS. BARNES:

Well, it's outside the scope of

the -It does. Please let me make the

objection.

PMK DuttP2

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

Q.

Document 277-4

Okay.

Filed 12/01/2008

Page 201 of 209 237

1

12:20:18

1

Did you tell the CEO at the time or

2

12:20:21

2

3

12:20:24

3

4

12:20:32

4

5

12:20:38

5

6

12:20:41

6

did you -- how did you become aware that he found

7

12:20:43

7

out?

8

12:20:45

8

9

12:20:50

9

any of your superiors? A.

Well, I did not tell the CEO.

I'm not sure

how Dr. Harris found out. Q.

Okay.

Well, when Harris did find out, how

Did he have a conversation with you? A.

At some point he said take some time to --

to work with my parents.

10

12:20:56 10

Q.

Okay.

Do you recall when he told you that?

11

12:20:59 11

A.

I don't remember the exact day.

12

12:21:01 12

Q.

Give me an estimate.

13

12:21:03 13

14

12:21:06 14

A.

Well, it was either late 2006 or early 2007.

15

12:21:12 15

Q.

Okay.

16

12:21:17 16

and get medical leave form and fill it out, go to

17

12:21:20 17

H.R., do a doctor certification, anything of that

18

12:21:24 18

nature?

19

12:21:24 19

A.

I didn't even consider it.

20

12:21:27 20

Q.

Why not?

21

12:21:27 21

A.

Well, for one thing, I didn't want to be

22

12:21:30 22

23

12:21:33 23

Q.

What does that mean?

24

12:21:34 24

A.

Well, I didn't want to take off or quit

25

12:21:37 25

What month?

Okay.

like Dr. Jadwin.

What year?

And you never decided to go

For another thing -Hold on.

working or -- or decrease my workload from anywhere

PMK DuttP2

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

Document 277-4

Filed 12/01/2008

Page 202 of 209 243

1

12:27:51

1

needed me to be there rather than being away for a

2

12:27:54

2

three- or a one-month period solid.

3

12:28:09

3

4

12:28:11

4

5

12:28:16

5

6

12:28:18

6

7

12:28:21

7

8

12:28:22

8

wrong for an employer to punish an employee for

9

12:28:25

9

taking medical leave for a legitimate reason?

Q.

What do you think of the notion of taking

medical leave off when you're sick? A.

Oh, I think -- I think if it's a legitimate

reason then people have a right to do it. Q.

A.

Do you think people -- do you think it's

10

12:28:28 10

Maybe.

It would depend on the

11

12:28:29 11

12

12:28:30 12

Q.

So sometimes it would be okay?

13

12:28:31 13

A.

I don't know the law in that area.

14

12:28:35 14

15

12:28:36 15

16

12:28:39 16

17

12:28:41 17

18

12:28:49 18

to the medical leave; whether there were, as I said

19

12:28:56 19

in this case, previous statements; and it would

20

12:29:00 20

depend on the nature and legitimacy of the medical

21

12:29:04 21

condition and the seriousness, for example.

22

12:29:14 22

THE WITNESS:

23

12:29:16 23

MR. LEE:

24

12:29:19 24

Let's go off the record at 12:29 p.m.

25

12:42:55 25

(Recess taken.)

circumstances.

That's a

legal question. Q.

I'm not asking for the law.

I'm asking for

your opinion on this. A.

It would depend on, for example, what led up

Can we take a break?

Sure.

PMK DuttP2

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

Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

263 Page 203 of 209

ss. 3 4 5

I,

Susan R. Wood,

a Certified Shorthand

6

Reporter in the State of California,

7

Certificate No.

8

PHILIP LEE DUTT, M.D.,

9

foregoing deposition,

6829,

holding

do hereby certify that the witness named in the was by me duly sworn; that said

10

deposition was taken Tuesday,

11

time and place set forth on the first page hereof.

12

September 9,

2008,

That upon the taking of the deposition,

at the

the

13

words of the witness were written down by me in

14

stenotypy and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness. I further certify that I am neither counsel for nor in any way related to any party to said action,

nor

in any way interested in the result or outcome thereof. Dated this 30th day of September,

2008,

at

Bakersfield, California.

--s-u-s-a-n-~~-N-O-.

- 6::-:8:-2::-:-9----

WOOD & RANDALL (800) 322-4595

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

Document 277-4

Filed 12/01/2008

Page 204 of 209

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

EXHIBIT 57

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

62

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

Document 277-4

Filed 12/01/2008

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3

______________

4 5 6 7 8 9

F. JADWIN, D.O.,

) ) Plaintiff, ) ) vs. ) No. 1:07-cv-00026-OWW-TAG ) Y OF KERN; et al. ) ) Defendants. ) __________________________)

10 11 12 13 14

VIDEOTAPED DEPOSITION

15

OF

16

STEVEN GEORGE O'CONNOR

17

Tuesday, December 4, 2007

18

Bakersfield, California

19 20 21 22 23 24 25

ted by:

Sandra L. Edmonson, CSR No. 7704, RPR, CRR

OConnorS

Page 205 of 209 1

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

Document 277-4

Filed 12/01/2008

Page 206 of 209 68

1

09:53:02

1 any preparation for the meeting with the CEO and with

2

09:53:07

2 Dr. Jadwin and with Karen Barnes?

3

09:53:11

3

A.

I did not.

4

09:53:11

4

Q.

Okay.

5

09:53:13

5 be at the meeting?

6

09:53:14

6

7

09:53:18

7 representative from human resources.

8

09:53:20

8

9

09:53:23

9 questions or that you would give any input at the

A.

What did you understand your role to

Q.

I thought my role probably was as a

Did you expect that you would be asking any

10

09:53:26 10 meeting?

11

09:53:26 11

A.

No.

12

09:53:26 12

Q.

Okay.

13

09:53:29 13 would be expected to be familiar with this packet,

14

09:53:31 14 Exhibit No. 3, before going into the meeting?

15

09:53:37 15

16

09:53:39 16 meeting.

17

09:53:39 17

18

09:53:44 18 confused.

19

09:53:47 19 just to be there?

20

09:53:48 20

21

09:53:50 21 was in Peter Bryan's mind or what?

22

09:53:53 22 BY MR. LEE:

23

09:53:53 23

24

09:53:55 24 Peter Bryan, why did --

25

09:53:56 25

A.

Did you understand that maybe you

Q.

I don't believe I said a word or two in the

Uh-huh.

So my -- I guess my -- I'm a little

Why would Peter Bryan ask you to be there,

MR. WASSER:

Q.

You're asking him to know what

Well, based upon your communications with

MR. WASSER:

He said he didn't recall.

OConnorS

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

Document 277-4

Filed 12/01/2008

Page 207 of 209 73

1

09:58:02

1

A.

I didn't ask, no.

2

09:58:03

2

Q.

Do you think it could have been because you

3

09:58:05

3 were more familiar with Dr. Jadwin's case than

4

09:58:09

4 Ms. Chester?

5

09:58:11

5

A.

I'm sorry, I don't know.

6

09:58:12

6

Q.

You don't know.

7

09:58:17

7 why it was you and --

8

09:58:18

8

9

09:58:20

9 years and, you know, known as a contact person in the

A.

So you just have no idea

Well, I've worked at the department for 14

10

09:58:28 10 department.

11

09:58:30 11

12

09:58:37 12 called into a meeting with the CEO then?

13

09:58:43 13

MR. WASSER:

14

09:58:44 14

THE WITNESS:

15

09:58:45 15

MR. WASSER:

16

09:58:46 16 BY MR. LEE:

17

09:58:46 17

18

09:58:51 18 would you expect to -- for an HR rep to be called

19

09:58:55 19 into a meeting with Peter Bryan?

20

09:58:58 20

A.

What -- I'm sorry.

21

09:59:00 21

Q.

You said --

22

09:59:00 22

A.

Any meeting he asked for.

23

09:59:03 23

Q.

Okay.

24

09:59:06 24 with Peter Bryan.

25

09:59:08 25 meetings were about where you were called in?

Q.

Q.

So . . .

So is it customary for an HR rep to be

Is it customary? Is it customary? What do you mean?

Is it like a -- I mean, what type of meeting

But you said there were some meetings Can you tell us what those

OConnorS

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

A.

Document 277-4

Filed 12/01/2008

Page 208 of 209 74

1

09:59:12

1

Well, I mean, I attended a variety of

2

09:59:15

2 meetings with him.

3

09:59:19

3 will, would be a meeting where the HR department

4

09:59:23

4 prepared for a regular hospital county employee a

5

09:59:28

5 proposal for discipline, for possibly a clerical

6

09:59:31

6 support staff or a nurse or anybody in a regular

7

09:59:35

7 position, and Pete -- Peter Bryan, the CEO, acts as

8

09:59:42

8 the hearing officer.

9

09:59:44

9 with him; we would prepare for the meeting.

Probably the most typical, if you

So we would attend the meeting We would

10

09:59:48 10 be present in the meetings.

11

09:59:50 11 the most typical.

12

09:59:51 12

13

09:59:54 13 case, then, his -- who was most familiar with

14

09:59:57 14 Dr. Jadwin's request for LOA as captured in Exhibit

15

10:00:02 15 No. 2?

16

10:00:13 16

A.

I'm not sure who's most familiar with it.

17

10:00:15 17

Q.

Okay.

18

10:00:17 18 handled that process?

19

10:00:19 19

20

10:00:22 20 was Pat Perez, and then Renita Nunn signed off on it

21

10:00:26 21 as recommending it.

22

10:00:27 22

23

10:00:30 23 the handling of Exhibit No. 2?

24

10:00:32 24

A.

That's correct.

25

10:00:32 25

Q.

Okay.

Q.

A.

Q.

That would probably be

Who was most familiar with Dr. Jadwin's

Who in your department would know who

Well, it was -- from the ground floor up it

So really you had almost no involvement in

Did you think -- did you suggest to

OConnorS

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

Document 277-4

1

STATE OF CALIFORNIA

2

COUNTY OF KERN

Filed 12/01/2008

228 Page 209 of 209

ss.

3 4

5

I,

Sandra L.

Edmonson,

a Certified Shorthand

6

Reporter in the State of California, holding Certificate

7

No.

8

the witness named in the foregoing deposition,

9

dUly sworn;

that said deposition was taken Tuesday,

10

December 4,

2007,

11

first page hereof.

12

7704,

do hereby certify that STEVEN GEORGE O'CONNOR, was by me

at the time and place set forth on the

That upon the taking of the deposition,

the

13

words of the witness were written down by me in

14

stenotype and thereafter transcribed by computer under

15

my supervision; that the foregoing is a true and correct

16

transcript of the testimony given by the witness.

17

I

further certify that I am neither counsel for

18

nor in any way related to any party to said action, nor

19

in any way interested in the result or outcome thereof.

20 21

Dated this 17th day of December,

2007,

at

Bakersfield, California.

22 23

~dJOe (3 arLm.ct!C-cA. nQra L. Edmonson, CSR No.

24 25

WOOD & RANDALL (800) 322-4595

CQV\.

7704

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

1 2 3 4 5 6

Document 277-5

Filed 12/01/2008

Page 1 of 56

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

DAVID F. JADWIN, D.O.,

12 13 14

Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

15

Defendants.

16 17

Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 I, Eugene D. Lee, declare as follows: 20 1.

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

21 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 22 counsel of record for Plaintiff David F. Jadwin in this matter. 23 2.

I am making this declaration in opposition to Defendants’ Motion for Summary

24 Judgment. I have personal knowledge of the matters set forth below and I could and would competently 25 testify thereto if called as a witness in this matter. 26 3.

Attached hereto as Exhibits are true and correct copies of the following documents:

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

1

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

Document 277-5

Filed 12/01/2008

Page 2 of 56

Exh. 1

Date 7/10/2006

Description Memo from Mr. Bryan to JCC re Recommendation of Demotion of Dr. Jadwin

2 3 4 5 6

8/14/2008 8/26/2008 1/9/2008 3/12/2008 10/21/2008

Deposition Transcript of Peter Bryan, Vol I Deposition Transcript of Peter Bryan, Vol II Deposition Transcript of David Jadwin, Vol II Deposition Transcript of David Jadwin, Vol V Deposition Transcript of David Jadwin, Vol VI

7

8/18/2008

Deposition Transcript of Former Supervisor Barbara Patrick, Vol I

8

4/16/2008

Deposition Transcript of Former Lab Mgr Gilbert Martinez

10

9

8/22/2008

Deposition Transcript of Former President Scott Ragland

11

10

8/25/2008

Deposition Transcript of Supervisor Ray Watson

11

8/21/2008

Deposition Transcript of Former CEO David Culberson

12

8/29/2008

Deposition Transcript of PMK Philip Dutt, Vol. I

13

8/28/2008

Deposition Transcript of Former COO Sandra Chester

17

14

9/4/2008

Deposition Transcript of PMK Eugene Kercher

18

15

6/29/2006

Letter from Lee to Barnes re Spoliation of Evidence

16

3/29/2007

Letter from Lee to Barnes re Spoliation of Evidence

17

11/20/2007 Defendants’ Responses to Plaintiff’s Request for Production, Set One

18

9/10/2007

1 2 3 4 5 6 7 8 9

12 13 14 15 16

19 20 21 22 23 24 25

19

Joint Conference Committee Meeting Minutes re Demotion of OB/GYN Chair Kern County Policy & Administrative Procedures Manual, Section 139 (Disciplinary Actions)

20

3/12/2002

21

12/26/2003 Change of Employee Status

26

CMO Marvin Kolb Memo to Jose Perez re Pathologist Elsa Ang Accusations

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

2

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

Document 277-5

Filed 12/01/2008

Page 3 of 56

22

5/15/2006

Expert Consulting Services Agreement, between Consultant William Colburn and Kern County

23

8/30/2006

Consultant William Colburn Report to Kern County re Review of Jadwin cases

24

8/13/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. I

5

25

8/27/2008

Deposition Transcript of Former Chief Medical Officer Irwin Harris, Vol. II

6

26

5/3/2004

KMC FNA Consulting Project by UCLA Consultant David Lieu

27

8/18/2008

Deposition Transcript of Former President of Medical Staff Jennifer Abraham

1 2 3 4

7 8 9 10

28

Cancer Conference Presenter Guidelines

29

8/15/2008

12

30

10/19/2005 Exh. 202: Jadwin letter to Albert McBride, Cancer Conference Director re October Conference

13

31

11

Deposition Transcript of Former Cancer Committee Director Albert McBride

October Conference attendee feedback

14 32

11/9/2005

Oncology Conference attendee feedback of Savita Shertukde

33

8/25/2008

Deposition Transcript of OB-GYN Physician Joseph Mansour

34

Harris Memos to File re Mansour Behavior

35

5/10/2006 to 4/12/2007 8/19/2008

36

8/18/2008

Deposition Transcript of Chair of Surgery Maureen Martin, Vol. I

37

4/16/2008

Deposition Transcript of Histotech Evangeline Gallegos

38

4/19/2008

Deposition Transcript of Former CMO Marvin Kolb

25

39

2/26/2008

Deposition Transcript of Pathology Secretary Tracy Lindsey

26

40

2/26/2008

Deposition Transcript of Clerk Irene Lopez

15 16 17 18 19 20 21 22 23

Deposition Transcript of Nurse Executive Antoinette Smith, Vol. I

24

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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41

12/6/2007

Deposition Transcript of Radiology Chair Javad Naderi

42

12/6/2007

Deposition Transcript of Cancer Committee Chair Ravi Patel

43

8/15/2008

Deposition Transcript of Former CEO Secretary Arlene Ramos-Aninion

5

44

12/5/2007

Deposition Transcript of Surgeon Edward Taylor

6

45

12/6/2007

Deposition Transcript of Neurosurgeon Charles Wrobel

46

8/21/2008

Deposition Transcript of Psychiatry Chair Tai Yoo

47

8/20/2008

Deposition Transcript of Acting Pathology Chair Philip Dutt

48

9/14/2006

Acting Pathology Chair Philip Dutt Email to Barnes re Plaintiff’s Paycut Amendment

12

49

10/17/05

Plaintiff email to Bryan re Serious Biopsy Errors

13

50

3/2/2006

Exh. 271: Plaintiff email to Bryan re Serious Biopsy Errors

51

4/21/2006

Emails between Plaintiff and Bryan re Serious Biopsy Errors

52

8/7/2008

Deposition Transcript of Pathologist Savita Shertukde

53

3/11/2008

Deposition Transcript of David Jadwin, Vol. IV

19

54

10/21/2003 Confidential Report on Lau Complaint against Jadwin

20

55

1/8/2008

Deposition Transcript of David Jadwin, Vol. I

56

9/9/2008

Deposition Transcript of PMK Acting Pathology Chair Philip Dutt, Vol. II

57

12/4/2007

Deposition Transcript of HR Director Steven O’Connor

58

10/10/2005 Amendment No. 1 to Employment Contract of Acting Pathology Chair Philip Dutt

59

11/1/2005

1 2 3 4

7 8 9 10 11

14 15 16 17 18

21 22 23 24 25 26

Employment Contract of Pathologist Savita Shertukde

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

60

6/19/2007 4.

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Employment Contract of Pathologist Gian Yakoub

Attached hereto as Exhibits 2-14, 24-25, 27, 29, 33, 35-47, 52-53 and 55-57 are true and

correct certified copies of deposition transcripts which I either personally conducted or attended. 5.

Attached hereto as Exhibits 15-16 are true and correct copies of letters which I authored

and faxed to Karen Barnes, Chief Deputy County Counsel for the County of Kern on the dates indicated. 6.

I have served four sets of written discovery on Defendants which included Document

Request No. 44. asking for “Any and all DOCUMENTS RELATING TO YOUR decision to demote Plaintiff from Chair of Kern Medical Center’s Pathology Department to staff pathologist.” To date, Defendants have not produced any of the agendas for any JCC meetings including the meeting at which the JCC voted to approve Plaintiff’s demotion from chair. Defendants have engaged in a level of discovery obstruction that is more excessive than I have ever encountered in my 13 years practicing as an attorney, of which this is but the latest example. 7.

Attached hereto as Exhibits 17 is a true and correct copy of Defendants’ responses

received by me in response to Plaintiff’s Request for Production of Documents, Set One, propounded by me on behalf of Plaintiff.

16 17 18

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

19 20 21

Executed on: December 1, 2008

22 23

/s/ Eugene D. Lee

24

EUGENE D. LEE Declarant

25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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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

EXHIBIT 58

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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AMENDMENT NO. 1 TO· AGREEMENT FQRPROFESSIONALSERVICES· CONTRACT EMPLOYEE

{County .... Philip Lbutt, M.b.} This Amendment No.1 to the Agreement for Professional Services is made and entered into this tott..... day of Oe.Jpber:, 2005. by and between the County of Kern (hereinafter "Gounty"},a political subdivision of the state of California, which. owns and operates Kern Medical Center (hereinafter "KMC"), and Philip L DOO, M.D. (hereinafter "Core Physician"), a contrad employee,

RECITALS WHEREAS: (a.) County and Core Physician have heretofore entered into an Agreement for Professional Services (Kern County Agt.#513~2005, dated June 21, 2005) (hereinafter "Agreement"), to provide professional medical services in the Department of pathology at KMC; and (b) County· and Core Physician desire to amend the Agreement to (i) reflect· the full time status of Core Physician effective October 15, 2005. (ii) increase the annual compensation paid to Core Physician, from $155;137 to $186,687, effective October 15, 2005, (iii) clarify the methodology used to pay the professional fee guarantee set forth in Article II, Section 4 of the Agreement, and (iii) revise Exhibit "N' to refJectcurrent assignments and incorporate medical record documentation requiremehts; NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth and incorporating by this reference the foregoing recitals, the parties hereto agree to amend the Agreement as follows: 1. Effective October 15; 2005, Article II, Compensation, section 1. Salary (Base), paragraph A, shall be amended as follows:
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2. Effective October 15, 2005, Article II, Compensation, section 1, Salary (Base), paragraph E, shall be amended as follows: "E. The maximum payable under this Agreement, including base salary and professional fees paid by County to Core Physician pursuant to Article II, section 4, paragraph G, will not exceed Nine Hundred Eighty-One Tho~sand Six Hundred Sixty-Two Dollars ($981,662) per the fIVe-year term of this Agreement."

3. Effective June 25, 2005, Article II, Compensation, section 4, Professional Fees, paragraph F, shall be amended as follows: "F. Based on the assumption that the patient activity of Core Physician will be in accordance with the attached job description and medical records documentation by Core Physician regarding supervision of resident physicians a~d care provided will be consistent with CMS requirements for professional billing, Co.unty agrees that the amount of professional fees to be paid by County to Core phYsician will not be less than Fifty-Seven Thousand Nine Hundred One Dollars ($57,901), prorated monthly in twelve (12) equal installments, for a period not to exceedtwel}Je (12) months from the effective date of this Agreement. The professional fees collected between June 25, 2005, the effective date of this Agreement, and June 24, 2006, will be paid by County to Core Phy~ician as follows: July 19, 2005, for the period June 25, 2005 through July 31, 2005; August 16, 2005, for August 2005; September 27,2005, for September 2005; October 25, 2005, for October 2005; Nov~mber 22, 2005, for November 2005; December 20, 2005, for December 2005; January 17, 2006, for January 2006; February 28, 2006, for February 2006; March 28, 2006, for March 2006; April 25, 2006, for April 2006; May 23, 2006, for May 2006; and June 20, 2006, for the period June 1, 2006 through June 30, 2006. The gross professional fees collected between June 25, 2005 and June 24, 2006, and subsequently paid by County to Core Physician are subject to the assessment for administrative expenses and all appropriate federal and state taxes."

4.

Effective June 25, 2005, Article II, Compensation, section 4, Professional Fees, paragraph G, shall be amended as follows: "G. Core Physiciarn hereby assigns toKMC and agrees that :KMC shall have the exclusive right to bill and collect for services prOVided by Core Physician under this Agreement for the twelve (12) month period beginning June 25; 2005 through June 24, 2006, or until such time as the gross professional fees coll~cted by County for services provided by Core Physician under this Agreement ~ceeds $57,901, in addition to the cost: of overhead and assessment for admi(:1istrative expenses. During the period June 25, 2005 through June 24, 2006, or until such time as the professional fees collected and paid by County to Core Physician for services provided by Core Physician under this Agreement exceeds $57,901, Core Physician represents and warrants that Core Physician shall not bill or submit a statement of charges to, or enter into any agreement or undertaking with, any patient, third person or entity for the provision of services (With or without consideration), nor

2

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shall Core Physician initiate any surcharge for care without the prior written authorization and approval of County and KMC." 5. Effective October 15, 2005, Article III, Benefits, section 3, Paid Leave of Absence, paragraph 8, shall be amended as follows: "B. Vacation: Effective October 15, 2005, for each pay period of service, Core Physician shall be credited with a vacation entitlement of 6.15 hours, for a maximum accrual of 160 hours per year. Total unused vacation accumulated shall not exceed a maximum of 320 hours. No further vacation entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued vacation entitlement shall be credited to a maximum of 320 hours. Unused vacation benefits will be credited to Core Physician to a maximum of 320 hours if this Agreement is renewed. Core Physician will be paid for accrued and unused vacation hours upon termination of employment." 6. Effective October 15, 2005, Article III. Benefits. section 3, Paid Leave of Absence, paragraph C, shall be amended as follows: "C. Sick Leave: Effective October 15. 2005. for each pay period of service, Core Physician shall be credited with sick leave credit for illness or accident of 2.46 hours, for a maximum accrual of 64 hours per year. After fIVe years of employment. including full-time employment prior to the effective date of this Agreement. Core Physician shall earn and accrue sick leave credit for illness or accident at the rate of 3.07 hours for each pay period of service for an annual accrual of 80 hours per year. Total unused sick leave accumulated shall not exceed a maximum of 1152 hours. No further sick leave entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued sick leave shall be credited to a maximum of 1152 hours. Unused sick leave will be credited to Core Physician to a maximum of 1152 hours if this Agreement is renewed. Core Physician will not be paid for accrued and unused sick leave upon termination of employment. County policy applicable to other regular County employees of KMC regarding use of sick leave shall apply to Core Physician. n 7. Effective October 15. 2005, Article III. Benefits, section 4. Paid Leave of Absence, paragraph 0, shall be amended as follows: "D. Educational Leave: Effective October 15, 2005. Core Physician shall receive 80 hours paid education leave annually. The first 80 hours shall be credited on the effective date of the Core Physician's employment contract. On each successive anniversary date of that contract, an additional 80 hours shall accrue. Education leave must be used within the year that it is accrued and unused education leave does not accrue to the following contract year. Unused education leave will not be paid upon termination of employment. All education leave must be approved in

3

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advance of use by the Core Physician's Department Chair and the Medical Director." 8. Effective October 15. 2005. Article III. Benefits, section 9. Expense Reimbursement. paragraph A, shall be amended as follows: "A. Effective October 15. 2005, Core Physician will be reimbursed for approved and necessary expenditures related to continuing education including seminar fees, travel and study mat~rials. Reimbursement for travel, lodging and meals shall be upon the same terms and rates as allowed for County employees of KMC. Core Physician will be reimbursed expenses and materials not to exceed· $2,500 per year." 9. Effective October 15, 2005, Exhibit "A," Job Description, sh~1I be replaced with Exhibit "A" to Amendment No.1. Job Description, attached hereto and incorporated herein by this reference. 10. Except as provided herein, all other terms, conditions, and covenants of the Agreement shall remain in filill force and effect. [Intentionally left blank]

4

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IN WITNESS WHEREOF, the: PC3rtie~ have executed this Amendnwnt No.1 to the Agreement as oftheday and year fir~;{written·.above. . APPROVED AS TO CONTENT: KERN MEDICALCENTER

n~.···(~~·

\. By "

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COUNTY OF KERN

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Pete~72~~ Chief8xecUtl~tCer //~-.)

By

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./~/fat.rA;(.. 4;./--r:;.• ~"

.

A

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Chairman' Board of Supervisors

KERN COUNn/ PERSONNEL

.

By

CORE PHYSICIAN

l> .. _,. ~ ,:.,...)

j ; ' ; " . L-.-...;~./

! 1

Kay F. Madden

7~' F~,f

c{;

Director APPROVED AS TO FORM: OFFICE OF COUNTY COUNSEL

By

rft/lbv'\/ A. lY~VVLt:t:-­ Deputy

Amend1.Dutt081105

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Exhibit "An To Amendment No.1 Job' Description Philip L. Dull, M.D. The Department of Pathology provides professional anatomic and clinical pathology services to Kern Medical Center and oversees the administration ahd operation of the clinical laboratory, blood bank and histology and department administriative services. Key duties center upon providing high quality. timely and cost effective patient care. Position Summary: Reports to Chairman, Department of Pathology. Clinical Responsibilities: Provides professional pathology services required to process, interpret and report of pathology specimens, including but not limited tp surgical pathology specimens, bone marrow specimens, non-gynecologic and gynecologic cytology specimens and fine needle aspirates. 1. Performs collection procedures, such as bone marrow aspiration and biopsy. fine needle aspiration and skin punch biopsies. 2. Performs medical autopsies and prepares complete autopsy reports. 3. Performs professional surgical pathology, cytopathology anp hematopathology services on a rotational basis with one or more pathologist. 4. Performs call coverage on a proportional basis with two other p~thologists. 5. Serves as a clinical pathologist and co-laboratory directqr covering clinical laboratory and blood bank services. , 6. Responsibly examines and interprets clinical microscopy speci~ens, such as body fluid, urine, sputum. peripheral blood and other clinical specimeps. 7. Completes all seJVice work in a timely, accurate and professional manner. Administrative Responsibilities: 1. Follows department rules as specified in the pathology department policies and procedures. i . 2. Attends histology and pathology department meetings as scheduled. 3. Attends other laboratory meetings as appropriate or assigned I by the department chairman. , 4. Attends inter-departmental meetings and committees as I assigned by the department chairman. and president of the medical staff. i 5. Attends general medical staff meetings on a semi-annual basis. i 6. Participates in the training of hospital physician residents an
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8. Participates in proficiency testing and performance improvement programs as required.

Assignments: Work assignments will be based upon a work schedule of 44 weeks per year on a flexible basis that fulfills the needs of the deparbTlent. Medical Record Documentation: Documentation by Core Physician will conform to the requirements for evaluation 'and management (ElM) services billed by:teaching physicians set forth in the Medicare earners Manual, Part 3, sections 15016 -15018, inclusive.

7

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AMENDMENT NO.. ·2 T0 AGgEEMENT FORPROFESSIONAL SERVICES CONTRACT"EMPLOYEE (County~ Philip L Outt, M.D,)

This Amendment No.2, to the Agreement for Professional Services is made and entered into this ,,;Cff:bday, oflJu.e-rnhe-r--; '2006, by and between the County of Kern (hereinafter·"County"),a political subdivision ,of the state of California, which owns and 'operates Kern Medical Center (hereinafler "KMC") , and Philip L Dutt, M.D. (hereinafter "Gore Pbysician"), a· contraCt employee. RECITALS

WHEREAS: (a) County and Gore Physician have heretofore entered into an Agreement for Professional Services (Kern County Agt. #513~2005, dated June 21, 2005) (hereinafter "Agreement"JandAmendment No.1 (Kern County Agt #857-200.5" dated October 10, 2005); for the period Jun$ 25, 2005 through June 24, 2010, to provide professional medical services in tbe 'Oepf;lftment of Pathology at KMC; and (b) County and Gore Physician desire to amend the Agreement to reflect the handling of professional fees paid to the clearing account effective January 1,2007; and (c)

The Agreement is amended effective January 1, 2007;

NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth and incorporating by this reference the foregoing recitals, the parties hereto agree to amend the Agreement as follows: i

1, Notwithstandingany\provision oUhe Agreement to the contrary, effective January 1, 2007, all professiQnalfees bollected by Core Physidan'sbilling service will continue to be paid to the clearingaccounl. County wilJcontinue, to deduct, from gross professional fees collected and subsequentty deposited into the clearing account, 'the assessment for administrative expenses arid the overhead expenses for Core Physioian's practice group. co,'unty,will no I,onger pay Rrofessional fees as we,ges ,to Core Physician. Net professional fees will be paid monthly d~rectly from the clearing account, as directed by Core Physician or Core P,h,ysician's practic$, group, as a distribution to Core PbysiCl,'arl. Core Physician will be responsible for all appropriate federal and state taxes and withholding requirements. 2, Except. as prbvide~ herein, all other terms,conditions, and covenants of the Agreement and any andall!amendments thereto shall remain in full force and effect.

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fNWITNESS WHEREOF, the parties have ente~d into this Amendment No; 2 the Ag.reemeritasof the day and yearfirstwlittenabove.

COUNTY OFKER.N

to

CORE PHYSICIAN

By<8Ar~~ a~~

By,~M-V PhilipL. >utt,M.D.

Ohairman Board ofSupervisors

APPRO\JEDAS TO CONTENT: KERN MEDICAL CENTER

By

ill ·2[U2~-----~··

David KGulberson Interim Chief Executive Officer

KERN COUNTY PERSONNEL .,~

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''';''.-''',.'-".,Z410:~''''-'''''_!.7:, By i( //} . KayF. Madden /;.~<{~ :'

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.(l;(,

Director

APPROVED AS TO FORM: OFFICE OF OOUNTY COUNSEL

BY&~VZ.~ Deputy , Amend2.Dutt,111506

2

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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

EXHIBIT 59

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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AGREEM.e~:r_FQR.~RQ.~s.SSiONAL·SERV'CES CONTRA.CT ISMPLOYEE (CQuntyof Kern-Savit~tP.Shertukde, M,D,) This Agreement is. made. and entered into this {at d$Y of~&~, 2005, between the County of Kern, a political subdivision of the state of California (hereinafter "County"), which owns and operates Kern Medical Center (hereinafter "KMC and Savita P. Shertukde, M.D. (herein$fter "CorePhysician a contract employee. H

),

H

),

RECITALS. WHEREAS:

A. County is authorized, pursuant to Government Code section 31000, to contract with specially trained persons, and further authorizes the payment of compensation for the sef\Jices rendered; and

8.

County requires assistance in the performance of professional medical services at KMCas such services are unavailable from County resoDrces; and C. Core Physician has special training, knOWledge and experience and is licensed by the state of California to practice medicine and Is qualified to render medical services. NOW, THEREFORE, His agreed between County and Core Physician as follows:

Article I. rERM AND CONDITIONS 1.

TERM This Agreement shall be effective on November 1, 2005, and shall remain in effect through October 31, 2010.

2.

SERVICES Core Physician shall render services as set forth in Exhibit "A," which is attached and made a part of this Agreement. Article It COMPENSATION

1.

SALARY (BASE) Core Physician shall be entitled to the following compensation (as defined in Article II, Section 3):

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A. Core Physician will work full-time (according to AMA survey data for specialty but no less than forty [40] hours per week) and will be compensated with cash and other value as follows: Core Physician will be paid Five Thousand Four Hundred Eighty-Four Dollars and Sixty-One Cents ($5,484.61) biweekly not to exceed One Hundred Forty-Three Thousand Eighty-Eight Dollars ($143,088) annually. County will withhold, from said daily compensation of Core Physician, all applicable federal, state and local payroll taxes. County will pay the employer's portion of the hospital insurance portion of Social Security (FICA 2). B. Core Physician will be paid biweekly on the same schedule as regular fulltime County employees. The exact date of said biweekly payments will be at the sale discretion of County, as is reasonable and convenient for County. C. No adjustment in compensation will be effective without a written amendment to this Agreement. D. The maximum payable under this Agreement, including base salary and professional fees paid by County to Core Physician pursuant to Article II, section 4, paragraph G, will not exceed Seven Hundred Seventy-Three Thousand Three Hundred Forty-One Dollars ($773,341) per the five-year term of this Agreement.

2.

OVERALL COMPENSATION STRUCTURE A. The purpose of this Compensation Plan is to provide market-based, performance-driven compensation that recognizes a Core Physician's efforts and contributions toward promoting the mission and values of KMC. Core Physicians will be identified as such in their contracts with KMC. B. Total compensatiQn for Core Physician will be composed of a base salary paid by the County, professional fee payments from third-party payors, and potential other income generated due to the individual's status as a physician. These three sources of income shall be referred to in this Agreement as Total Core Physician Compensation. The structure for determining Total Core Physician Compensation shall be referred to in this Agreement as the Compensation Plan. C. A Kem County clearing account and a KMC compensation budget unit will be established to account for all funds generated and received to pay Total Core Physician Compensation and to pay all expenses associated with this Compensation Plan. These will act as trust accounts and will be solely used for this purpose. D. A Plan Administrator will be retained by KMC to administer this Compensation Plan and will report to the Faculty Practice Board. 2

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E. A Board of Directors will be established to oversee the Compensation Plan and the Plan Administrator of the Compensation Plan. This Board of Directors shall be referred to in this Agreement as the Faculty Practice Board. The Faculty Practice Board will establish bylaws inclUding powers, duties and responsibilities to be approved both by a simple majority of the Faculty Practice Board and the CEO of KMC. F. An assessment for administrative expenses shall be made on Total Core Physician Compensation to support the administrative expenses of the Compensation Plan. (1) The amount or percentage of the assessment shall be determined annually by the Faculty Practice Board. The amount or percentage of the assessment shall not exceed two percent (2%) of Total Core Physician Compensation (as defined in Article II, Section 2, paragraph B) annually. (2) Administrative expenses shall include the salary and benefits for the Plan Administrator and any staff hired by KMC to support the Plan Administrator, expenses of the Kem County Pension Plan for Physician Employees. and other business expenses as determined by the Plan Administrator and the Faculty Practice Board. G. County agrees to assume liability for and indemnify and hold harmless Core Physician against all claims, losses. expenses, costs, actions, settlements, attorneys' fees and judgments incurred by Core Physician or for which Core Physician becomes liable to pay, arising out of or in connection with or related to the services rendered or which a third party alleges should have been rendered by Core Physician pursuant to this Agreement. The obligation of County under this paragraph shall arise as to all incidents occurring on and after November 1, 2005, and prior to termination or expiration of this Agreement. This paragraph shan survive the termination or expiration of this Agreement and shall apply to all claims made during or after the termination or expiration of this Agreement, which allegedly arise out of services rendered or which should have been rendered by Core Physician during the term of this Agreement. The liability coverage of this paragraph shall not apply to services at sites other than KMC unless approved by the Kern County Board of Supervisors. H. County shall indemnify and defend Core Physician to the same extent as would be afforded to a regular full-time County employee. Said duty of defense and indemnity shall not apply to intentional or willful misconduct, gross negligence, dereliction or criminal misconduct on the part of Core Physician, and further shall not extend to any conduct, actions or activities that do not arise directly from the performance of this Agreement. 3

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BASE SALARY (ITEMS INCLUDED AND METHOD OF PAYMENT)

A. Base salary is compensation paid to Core Physician by the County for: (1) patient care for Medically Indigent Adults (MIA), as defined by Califomia Welfare and Institutions Code sections 17000 et seq., and adults and juveniles incarcerated and detained in County facilities; (2) as a safety-net provider, partial compensation for under-compensated and uninsured patients; (3) teaching; (4) administrative duties; and (5) other activities approved by the CEO of KMC and the Faculty Practice Board. County shall fund the clearing account unit biweekly with an amount equal to Core Physician's biweekly base salary. The base salary, less the assessment for administrative expenses, will be reported as wages and subject to all appropriate federal and state taxes. The base salary will be considered the minimum compensation that a Core Physician shall receive under this Compensation Plan. B. The base salary will be negotiated between the parties and set out for each Core Physician at the end of twelve (12) months by means of an amendment to this Agreement. The base salary will be based on a benchmark salary in proportion to the Core Physician's full-effort commitment. (1) The structure of benchmark salaries is based upon a national standard with four salary steps: "A", "B", "C" and "D." There are three criteria for step placement: level of clinical service, teaching, and administrative duties. This benchmark salary structure and criteria for step placement are set forth in the KMC Faculty Practice Administrat.ive Policies and Procedures Manual. (2) The Faculty Practice Board shall establish the criteria for measuring the full-effort commitment. The Department Chairs, with approval of the Faculty Practice Board, will establish the expected levels of the criteria to meet a full-effort commitment. The criteria for measurement of full-effort commitment is set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual. (3) Research shall not be considered as part of a Core Physician's full-effort commitment. Research activity will be compensated as set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual. 4.

PROFESSIONAL FEES

A. Professional fees include all professional fee collections or payments associated with direct patient care by Core Physician. This shall be referred to in this Agreement as professional fees. Core Physician's practice group is responsible for billing and collecting all professional fees for Core Physician's services. Core Physician's will have a separate tax identifICation number. 4

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B. Professional fee billing by Core Physician's practice group shall be made by a billing service company, approved in advance by the Faculty Practice Board, and based upon minimum performance standards set by the Faculty Practice Board. All professional fees collected by the billing service for Core Physician (i.e., gross professional fees collected) shall be paid to the clearing account. The billing service will maintain individual and practice group records on professional fee billing and collections and will account for such to the Plan Administrator. C. The assessment for administrative expenses will be deducted from gross professional fees collected. D. Overhead and expenses for a practice group, as determined by an overhead distribution formula established by the Plan Administrator and the Faculty Practice Board, will be deducted from the gross professional fees collected and returned to the practice group. E. Gross professional fees collected, less the assessment for administrative expenses and overhead, will be paid monthly as wages and will be subject to all appropriate federal and state taxes; however, practice groups (consistent with their practice group agreements with the County) may direct the Plan Administrator as to the distribution of net professional fees collected, subject to review by the Faculty Practice Board. F. Based on the assumption that the patient activity of Core Physician will be in accordance with the attached job description and medical records documentation by Core Physician regarding supervision of resident physicians and care provided will be consistent with CMS requirements for professional billing, County agrees that the amount of professional fees to be paid by County to Core Physician will not be less than Fifty-Seven Thousand Nine Hundred One Dollars ($57,901), prorated monthly in twelve (12) equal installments, for a period not to exceed twelve (12) months from the effective date of this Agreement. The professional fees collected between November 1, 2005, the effective date of this Agreement, and October 31, 2006, will be paid by County to Core Physician as follows: November 22, 2005, for November 2005; December 20, 2005, for December 2005; January 17, 2006, for January 2006; February 28, 2006, for February 2006; March 28, 2006, for March 2006; April 25, 2006, for April 2006; May 23, 2006, for May 2006; June 20, 2006, for June 2006; July 18, 2005, for July 2006; August 29,2006, August 2006; September 27, 2006, for September 2006; and October 24, 2006, for October 2006. The gross professional fees collected between November 1, 2005 and October 31, 2006, and subsequently paid by County to Core Physician are subject to the assessment for administrative expenses and all appropriate federal and state taxes. G. Core Physician hereby assigns to KMC and agrees that KMC shall have the exclusive right to bill and collect for services provided by Core Physician under this Agreement for the twelve (12) month period beginning November 1, 2005 through 5

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October 31, 2006, or until such time as the gross professional fees collected by County for services provided by Core Physician under this Agreement exceeds $57,901, in addition to the cost of overhead and assessment for administrative expenses. During the period November 1, 2005 through October 31, 2006, or until such time as the professional fees collected and paid by County to Core Physician for services provided by Core Physician under this Agreement exceeds $57,901, Core Physician represents and warrants that Core Physician shall not bill or submit a statement of charges to, or enter into any agreement or undertaking with, any patient, third person or entity for the provision of services (with or without consideration), nor shall Core Physician initiate any surcharge for care without the prior written authorization and approval of County and KMC. 5.

OTHER INCOME

A. Other income IS Income generated due to the individual's status as a physician, which includes, but is not limited to, royalties, grants, speaker fees, professional witness fees, and other nonprofessional fees. B. All other income will be paid to the Core Physician in accordance with instructions provided the clearing account by Core Physician or Core Physician's practice group. Expenses properly incurred by the Core Physician in generating other income will be reimbursed to the Core Physician prior to the balance being channeled through the clearing account. This remainder, less assessment for administrative expenses, will be paid monthly to Core Physician as wages. Other income shall be reported as wages and subject to all appropriate federal and state taxes. C. Income generated by a Core Physician that is deposited to the Community Medical Education and Research Foundation ("CMERF") for department educational use shall not be included as other income and shall not be subject to the assessment for administrative expenses. 6.

PRACTICE GROUPS

A. Core Physicians will be members of a practice group. All practice groups will contract with KMC for the provision of community clinic services, which shall be integrated into the KMC teaching program. The contract between each practice group and KMC will define the responsibilities and funds flow, including professional fee distribution, between each organization. B. Practice group overhead and business-related expenses will be paid by the practice group in accordance with predetermined instructions. Practice groups will determine the policy for expense limits and reimbursable items. County is not responsible for the amount of group overhead and business-related expenses claimed. 6

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OTHER CORE PHYSICIANS

Core Physicians who are not part of a practice group and who practice exclusively at KMC-owned or -contracted sites will be responsible for the cost of professional fee billing as negotiated by the Core Physician with the billing service company. Article III. BENEFITS 1.

EFFECTIVE DATE OF BENEFITS

The date of employment for the purpose of receiving and accruing benefits listed in this Article III shall not be affected by the date of this Agreement, but shall be the date the Core Physician was first continuously employed by KMC. 2.

HEALTH INSURANCE

County shall provide to Core Physician and eligible dependents medical, dental and vision insurance as provided to other regular County employees of KMC. Core Physicians first hired by the County of Kern after April 15, 1997, must pay twenty (20) percent of the cost of their health benefits. County may change the benefits provided under this insurance as such benefits shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement. 3.

PAID LEAVE OF ABSENCE

Core Physician will receive paid leave for holidays, vacation, sick leave and educational leave.

A.

Holidays: Core Physician shall be entitled to such holidays as provided to full-time County employees of KMC. County may change the holidays provided under this section as such holidays change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement. B. Vacation: For each pay period of service, Core Physician shall be credited with a vacation entitlement of 6.15 hours, for a maximum accrual of 160 hours per year. Total unused vacation accumulated shall not exceed a maximum of 320 hours. No further vacation entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued vacation entitlement shall be credited to a maximum of 320 hours. Unused vacation benefits will be credited to Core Physician to a maximum of 320 hours if this Agreement is renewed. Core Physician will be paid for accrued and unused vacation hours upon termination of employment.

C. Sick Leave: For each pay period of service, Core Physician shall be credited with sick leave credit for illness or accident of 2.46 hours, for a maximum accrual of 7

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64 hours per year. After five years of employment, including full-time employment prior to the effective date of this Agreement, Core Physician shall earn and accrue sick leave credit for illness or accident at the rate of 3.07 hours for each pay period of service for an annual accrual of 80 hours per year. Total unused sick leave accumulated shall not exceed a maximum of 1152 hours. No further sick leave entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued sick leave shall be credited to a maximum of 1152 hours. Unused sick leave will be credited to Core Physician to a maximum of 1152 hours if this Agreement is renewed. Core Physician will not be paid for accrued and unused sick leave upon termination of employment. County policy applicable to other regular County employees of KMC regarding use of sick leave shall apply to Core Physician. D. Educational Leave: Core Physician shall receive 80 hours paid education leave annually. The first 80 hours shall be credited on the effective date of the Core Physician's employment contract. On each successive anniversary date of that contract, an additional 80 hours shall accrue. Education leave must be used within the year that it is accrued and unused education leave does not accrue to the following contract year. Unused education leave will not be paid upon termination of employment. All education leave must be approved in advance of use by the Core Physician's Department Chair and the Medical Director.

4.

UNPAID LEAVE OF ABSENCE County shall provide Core Physician the right to unpaid leave of absence provided to other regular County employees of KMC pursuant to County policy. County may change its policy regarding leave of absence, as its policy for leave of absence shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

5.

RETIREMENT PLAN A. Core Physician shall participate in the Kern County Pension Plan and Trust Agreement for Physician Employees (the "Plan"), a qualified defined contribution pension plan, pursuant to the terms of the instrument under which the Plan has been established (the "Plan Document"), as from time-to-time amended. County and Core Physician contributions for each Plan year (as defined in the Plan Document) under the amended and restated Plan document shall be as follows: County shall contribute as County's required contribution the sum of Seventeen Thousand Five Hundred Dollars ($17,500) for the account of Core Physician for each complete Plan year of service (as defined in the Plan Document) by Core Physician. Core Physician's mandatory employee contributions required under the amended and restated Plan Document shall be as follows: If Core Physician's Compensation (as defined under the Plan Document) was One Hundred Fifty Thousand Dollars ($150,000) or less during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan 8

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Document shall be Four Thousand Dollars ($4,000) for a complete Plan year of service by Core Physician. If Core Physician's Compensation was more than One Hundred and Fifty Thousand Dollars ($150,000) but less than One Hundred and Seventy Thousand Dollars ($170,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Nine Thousand Dollars ($9,000) for a complete Plan year of service by Core Physician. If Core Physician's Compensation was One Hundred Seventy Thousand Dollars ($170,000) or more but less than One Hundred Eighty Thousand Dollars ($180,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Twelve Thousand Five Hundred Dollars ($12,500) for a complete Plan year of service by Core Physician. If Core Physician's Compensation was One Hundred and Eighty Thousand ($180,000) or more but less than One Hundred Ninety Thousand Dollars ($190,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Seventeen Thousand Five Hundred Dollars ($17,500) for a complete Plan year of service by Core Physician. If Core Physician's Compensation was at least One Hundred Ninety Thousand Dollars ($190,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be the maximum amount permitted by Internal Revenue Code section 415(c)(1) reduced by the County contribution for the account of Core Physician for the Plan year. Core Physician's mandatory employee contributions shall be withheld by County from Core Physician's biweekly salary in relatively equal amounts. Total contributions by Core Physician and County will not exceed the yearly amount allowed by law; provided, however, if any amounts are contributed in excess of such permissible amounts, the excess contribution shall be corrected as provided in the Plan Document or under law. Any changes in the Plan Document will control the terms of this Agreement. County's required contribution for the account of Core Physician and Core Physician's mandatory employee contributions are also subject to all of the transition rules contained in the Plan as it now exists or may be hereafter amended which may reduce the amount of contribution. The transition rules include, but are not limited to, those contained in sections 3.3(b), 3.3(d), 3.5, and 3.6 of the amended and restated Plan Document. Core Physician (together with all Plan participants) shall be responsible for a pro rata share of the annual costs of administering the Plan. Due to the manner in which Plan participant accounts are held and invested, most such costs cannot be paid directly from Plan assets. To facilitate payment of such costs, County shall advance such costs for so long as County determines such an arrangement is necessary or desirable. To offset such costs, County shall reduce its contribution to the Plan for Core Physician by Core Physician's pro rata share of such costs as determined under the Plan Document.

8.

If the fixed contribution structure described in the immediately preceding paragraph A results, or would result, in the Internal Revenue Service not issuing a favorable determination Jetter for the Plan under the amended and restated Plan 9

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Document, the County reserves the right to substitute another contribution structure which will be designed to maximize benefit to Core Physician on a cost-neutral basis to County, and such substitute contribution structure shall control the terms of this Agreement. County will consult with the Pension Committee, as identified in the Plan Document, with respect to such substitute contribution structure. • C. County's required contribution and all mandatory employee contributions will be paid to such financial services firm(s) as determined under the Plan Document. If, pursuant to the Plan Document, Plan assets are allocated to separate accounts for each Plan participant, such financial services firm(s) shall be solely responsible for allocating Core Physician's contribution amount and investment experience to his or her account. If, pursuant to the Plan Document, Plan participants control the investment of their accounts at such financial services firm(s), the investment of Core Physician's Plan account through such financial services firm shall be determined by Core Physician. County shall not be liable for the investment experience of Core Physician's Plan account. D. Core Physician is not eligible to participate in any other retirement plan established or funded by the County for its employees, inclUding but not limited to the Kem County Employees' Retirement Association, and this Agreement does not confer upon Core Physician any right to claim entitlement to benefits under any such retirement plan(s). 6.

SOCIAL SECURITY AND MEDICARE TAXES

Core Physician is exempt from payment of Social Security taxes as the Kern County Pension Plan for Physician Employees is a qualified alternative to the insurance system established by the federal Social Security Act. Core Physicians employed before March 31, 1986, will continue to be exempt from the payment of Medicare taxes. 7.

DEFERRED COMPENSATION PLAN

Core Physician shall be eligible to participate in the Kem County Deferred Compensation Plan I on the same basis and to the same extent as full-time County employees. County may change its Deferred Compensation Plan as it shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement. 8.

KERN$FLEX PLAN

Core Physician shall be eligible to participate in the Kem$Flex Plan I on the same basis and to the same extent as eligible County employees. County may change its Kern$Flex Plan, as its policy for Kem$Flex shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement. 10

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EXPENSE REIMBURSEMENT Core Physician will be reimbursed for approved and necessary expenditures related to continuing education including seminar fees, travel and study materials. Reimbursement for travel, lodging and meals shall be upon the same temis and rates as allowed for County employees of KMC. Core Physician will be reimbursed expenses and materials not to exceed $2,500 per year.

A.

B. Core Physician will be reimbursed for approved and necessary expenditures related to education and training as directed by KMC. Reimbursement for travel, lodging and meals shall be upon the same terms and rates as allowed for County employees of KMC. C. Reimbursement for expenses incurred in generating professional fees will be reimbursed as set forth in Article II, Section 4, above. D. Reimbursement for expenses incurred in generating other income will be reimbursed as set forth in Article II, Section 5, above. Article IV. TERMINATION AND CORRECTIVE ACTION

1.

TERMINATION OF AGREEMENT

A. Core Physician may terminate this Agreement, without cause, upon ninety (90) days' prior written notice to County. B. County may terminate this Agreement at any time for cause. Cause is defined as a violation of administrative policy of the County of Kern or KMC, unsatisfactory clinical performance, failure to meet department accountability or County may terminate this performance standards, or reduction of need. Agreement based upon reduction of need upon ninety (90) days' prior written notice to Core Physician. C. Termination of this Agreement by County does not per se affect medical staff membership. Actions affecting medical staff membership and clinical privileges are governed solely by the medical staff bylaws. D. In the event of termination of this Agreement for any reason, County shall have no further obligation to pay for any services rendered or expenses incurred by Core Physician after the effective date of the termination. Core Physician shall be entitled to receive base salary from County for services satisfactorily rendered, calculated on a prorated basis up to the effective date of termination. E. Professional fees earned prior to termination and collected within twelve (12) months of termination will be paid to Core Physician in accordance with current 11

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instructions provided the clearing fund by Core Physician's practice group. These professional fees will continue to be subject to assessment for administrative expenses, overhead distribution formula, and all appropriate federal and state taxes in effect at the time the professional fees are paid. 2.

CORRECTIVE ACTION

A. Core Physician is subject to corrective action for violation of administrative policy of the County of Kern or KMC, unsatisfactory clinical performance, or failure to meet department accountability, or performance standards. Such corrective action may include, without limitation, additional training and education, a verbal or written warning, a written reprimand, suspension with or without pay, and termination. B. Corrective action for unsatisfactory clinical performance is governed by the medical staff bylaws. C. Corrective action is not reqUired if the problem involves a serious ethical or clinical breach, a violation of law or a serious violation of County of Kern or KMC policy that merits immediate termination for cause. 3.

REVIEW AND APPEAL PROCESS

Review and appeal of the decision to impose corrective action or terminate for cause shall follow the process set forth in the KMC Faculty Practice Board policy and procedure, titled Corrective Action and Termination Review Process, or the medical staff bylaws, whichever is applicable. Article V. GENERAL PROVISIONS 1.

ASSIGNMENT

Core Physician shall not assign or transfer this Agreement or Core Physician's obligations hereunder, or any part thereof. Core Physician shall not assign any money due or which becomes due to Core Physician under this Agreement without the prior written approval of County. 2.

ASSISTANCE IN LITIGATION

Core Physician agrees to be available to County, at no cost to County, to testify as an expert witness or otherwise, in the event of litigation under any cause of action being brought against County or KMC, its directors, officers or employees except where Core Physician is a named party. KMC will credit the time spent in preparation and testimony as administrative time as defined in the Compensation Plan. 12

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AUTHORITY TO BIND COUNTY It is understood that Core Physician, in Core Physician's performance of any and all duties under this Agreement, has no authority to bind County or KMC to any agreements or undertakings.

4.

CAPTIONS AND INTERPRETATION Paragraph headings in this Agreement are used solely for convenience, and shall be wholly disregarded in the construction of this Agreement. No provision of this Agreement shall be interpreted for or against a party because that party or its legal representative drafted such provision, and this Agreement shall be construed as if jointly prepared by the parties.

5.

CHOICE OF LAWNENUE The parties hereto agree that the provisions of this Agreement will be construed pursuant to the laws of the state of California. This Agreement has been entered into and is to be performed in the County of Kern. Accordingly, the parties agree that the venue of any action relating to this Agreement shall be in the County of Kem.

6.

CONFLICT OF INTEREST The parties to this Agreement have read and are aware of the provisions of sections 1090 et seq. and sections 87100 et seq. of the California Government Code relating to conflict of interest of public officers and employees. All parties hereto agree that they are unaware of any financial or economic interest of any public officer or employee of County relating to this Agreement. It is further understood and agreed that if such a financial interest does exist at the inception of this Agreement, County may immediately terminate this Agreement by giving written notice thereof. Core Physician shall comply with the requirements of California Government Code sections 87100 et seq. dUring the term of this Agreement.

7.

COMPLIANCE WITH KMC AND COUNTY POLICIES Core Physician will comply with all applicable KMC and County policies and procedures. Core Physician will keep daily time sheets on forms supplied, and in the manner specified, by KMC. Core Physician will conform to office policy and routine as established by the Department of which Core Physician is a member, including but not limited to orientation, attendance at case conferences, supervision, in service education, patients' rights functions and performance improvement activities. Core Physician shall submit to drug testing, other laboratory testing and physical examinations as may be required by County. 13

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COMPLIANCE WITH LAW Core Physician shall observe and comply with all applicable County, state and federal laws, ordinances, rules and regulations now in effect or hereafter enacted, including but not limited to JCAHO, Title 22, California Code of Regulations, EMTALA, all federal and state billing requirements including Medi-CaVMedicaid and Medicare billing regUlations, EEOC, HIPAA, FEHA and Cal-OSHA. Core Physician will at all times meet state and federal licensure and County personnel qualifications for the practice of medicine.

9.

COUNTERPARTS

This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 10.

EMPLOYMENT STATUS

Core Physician shall be employed by the County of Kern pursuant to the terms of this Agreement and the medical staff bylaws of KMC. Core Physician acknowledges that Core Physician will not be deemed a classified employee, or have any rights or protections under the County's Civil Service Ordinance, rules or regulations. 11.

ENFORCEMENT OF REMEDIES

No right or remedy herein conferred on or reserved to County is exclusive of any other right or remedy herein or by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing by law or in equity or by statute or otherwise, and may be enforced concurrently or from·time to time. 12.

MEDICAL RECORDS

Any and all patient medical records and charts produced as a result of either party's performance under this Agreement shall be and remain the property of County. During the term of this Agreement, Core Physician shall be permitted to inspect or duplicate any patient's medical record or chart to the extent necessary to meet professional responsibilities to such patient or to assist in the defense of any malpractice or similar claim to which such medical record or chart may be pertinent, provided such inspection or duplication is permitted and conducted in accordance with applicable legal requirements and pursuant to commonly accepted standards of patient confidentiality. Core Physician shall be solely responsible for maintaining patient confidentiality with respect to any information obtained pursuant to this paragraph and will comply with all federal and state laws and regulations regarding patient confidentiality. 14

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MEDICAL STAFF MEMBERSHIP Core Physician will at all times be a member in good standing of the medical staff of Kem Medical Center and govemed as such by the medical staff bylaws. This Agreement may be terminated immediately if Core Physician's membership or privileges are modified or restricted pursuant to action under the medical staff bylaws such that services performed by Core Physician are limited or restricted. Prior to performing duties, Core Physician will: (a) complete an application for medical staff membership; (b) provide proof of current license from the Medical Board of California; (c) provide proof of current DEA certificate; and (d) meet with the medical staff office to ensure appropriate documentation is present for credentialing of medical staff privileges.

14.

MODIFICATIONS OF AGREEMENT This Agreement may be modified in writing only, signed by the parties in interest at the time of the modification.

15.

NON-APPROPRIATION County reserves the right to terminate this Agreement in the event insufficient funds are appropriated or budgeted for this Agreement in any fiscal year due to closing of a clinical department or KMC. Upon such termination, County will be released from any further financial obligation to Core Physician, except for services performed prior to the date of termination or any liability due to any default existing at the time this section is exercised. Core Physician will be given thirty (30) days' written notice in the event that such an action is required by County.

16.

NON-DISCRIMINATION The parties mutually agree to abide by all laws, federal, state and local, and by all policies of the County of Kern respecting discrimination. The parties shall not discriminate on the basis of race, color, national origin, age, religion, marital status or sexual preference.

17.

NON-WAIVER No covenant or condition of this Agreement can be waived except by the written consent of County. Forbearance or indulgence by County in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by Core Physician. County shall be entitled to invoke any remedy available to County under this Agreement or by law or in equity despite said forbearance or indulgence.

15

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NOTICES Notices to be given by one party to the other under this Agreement shall be given in writing by personal delivery, by certified mail, return receipt requested, or express delivery service at the addresses specified below. Notices delivered personally shall be deemed received upon receipt; mailed or expressed notices shall be deemed received four (4) days after deposit. A party may change the address to which notice is to be given by giving notice as provided above.

19.

Notice to Core Physician:

Savita P. Shertukde, M.D. 5401 Lennox Avenue, Apt. 20-G Bakersfield, California 93309

Notice to County:

Peter K. Bryan Chief Executive Officer Kern Medical Center 1830 Flower Street Bakersfield, California 93305

PROFESSIONAL RESPONSIBILITIES Core Physician will perform the services and duties set forth in this Agreement in a diligent and conscientious manner in accordance with accepted professional and ethical standards of the medical profession and the medical staff bylaws of KMC.

20.

RELATIONSHIP County and Core Physician recognize that Core Physician is rendering specialized, professional services. The parties recognize that each is possessed of legal knOWledge and skill, and that this Agreement is fully understood by the parties, and is the result of bargaining between the parties. Each party acknowledges their opportunity to fUlly and independently review and consider this Agreement and affirm complete understanding of the effect and operation of its terms prior to entering into the same.

21.

SEVERABILITY Should any part, term, portion or provision of this Agreement be decided finally to be in conflict with any law of the United States or the state of Califomia, or otherwise be unenforceable or ineffectual, the validity of the remaining parts, terms, portions, or provisions shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to constitute the agreement which the parties intended to enter into in the first instance. 16

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SOLE AGREEMENT This Agreement, including all attachments hereto, contains the entire agreement between the parties relating to the services, rights, obligations and covenants contained herein and assumed by the parties respectively. No inducements, representations or promises have been made, other than those recited in this Agreement. No oral promise, modification, change or inducement shall be effective or given any force or effect. [Intentionally left blank]

17

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IN WITNESS TO THE FOREGOING, the parties have executed this Agreement as of the day and year first written above. COUNTY OF KERN

APPROVED AS TO CONTENT: KERN MEDICAL CENTER

By

(1;;,~- Q, !~

C~ilJ.-.....peter K. Bryan IJ Chief Executive Officer

CONTRACT EMPLOYEE

KERN COUNTY PERSONNEL

.

/")

By

.>;::7di{ £:

{"j". (

\

V- / Kay F. Madden, Director

/,:'

APPROVED AS TO FORM: OFFICE OF COUNTY COUNSEL I

I-

\, S y NIl£· ~C/Vj// "'\ Deputy

AgrcerncntShertuKcc.1G0305

IS

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Exhibit II A" Job Description Savita P. Shertukde. M.D. The Department of Pathology provides professional anatomic and clinical pathology services to Kem Medical Center and oversees the administration and operation of the clinical laboratory, blood bank and histology and department administrative services. Key duties center upon providing high quality, timely and cost effective patient care. Position Summary: Reports to Chairman, Department of Pathology. Clinical Responsibilities: Provides professional pathology services required to process, interpret and report of pathology specimens, inclUding but not limited to surgical pathology specimens, bone marrow specimens. non-gynecologic and gynecologic cytology specimens and fine needle aspirates. 1. Performs collection procedures, such as bone marrow aspiration and biopsy, fine needle aspiration and skin punch biopsies. 2. Performs medical autopsies and prepares complete autopsy reports. 3. Performs professional surgical pathology, cytopathology and hematopathology services on a rotational basis with one or more pathologist. 4. Performs call coverage on a proportional basis with two other pathologists. 5. Serves as a clinical pathologist and co-laboratory director covering clinical laboratory and blood bank services. 6. Responsibly examines and interprets clinical microscopy specimens, such as body fluid. urine. sputum. peripheral blood and other clinical specimens. 7. Completes all service work in a timely. accurate and professional manner. Administrative Responsibilities: 1. Follows department rules as specified in the pathology department policies and procedures. 2. Attends histology and pathology department meetings as scheduled. 3. Attends other laboratory meetings as appropriate or assigned by the department chairman. 4. Attends inter-departmental meetings and committees as assigned by the department chairman and president of the medical staff. 5. Attends general medical staff meetings on a semi-annual basis. 6. Participates in the training of hospital physician residents and medical students, including the review of active and past case material as required for patient care. 7. Participates in quality assurance, quality management and quality improvement activities, including peer review and quality control functions of the pathology service. 8. Participates in proficiency testing and performance improvement programs as required. 19

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Assignments: Work assignments will be based upon a work schedule of 44 weeks per year on a flexible basis that fulfills the needs of the department. Medical Record Documentation: Documentation by Core Physician will conform to the requirements for evaluation and management (ElM) services billed by teaching physicians set forth in the Medicare Carriers Manual, Part 3, sections 15016 -15018, inclusive.

20

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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

EXHIBIT 60

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE D. LEE IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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AGREEMENT FOR PROFESSIONAL SERVICES CONTRACT EMPLOYEE (County of Kern - Gian A. Yakoub, D.O.)

This Agreement is made and entered into this 19-1-!? day of ,fun e ,2007, between the County of Kern, a political subdivision of the state of California (hereinafter "County"), which owns and operates Kern Medical Center (hereinafter "KMC"), and Gien A. Yakoub, 0.0. (hereinafter "Core Physician"), a contract employee. RECITALS

WHEREAS: A. County is authorized, pursuant to Government Code sections 31000 and 53060, to contract for the furnishing of special services with individuals specially trained and experienced and competent to perform those services; and B. County requires assistance in the performance of professional medical services at f<MC as such services are unavailable from County resources: and

C. Core Physician has special training, knowledge and experience and is licensed by the state of California to practice medicine and is qualified to render medical services; NOW, THEREFORE, it is agreed between County and Core Physician as follows: Article I. TERM AND CONDITIONS '1.

TERM

This Agreement shall be effective on July 1, 2007 (tile "Effective Date"), and shall remain in effect through June 30, 2012, unless earlier terminated pursuant to oUler provisions of this Agreement. 2.

SERVICES Core Physician shall render services as set forth in Exhibit "A," which is attached and made a part of this Agreement. Article II. COMPENSATION

1.

SALARY (BASE)

Core Physician shall be entitled to the following compensation (as defined in Article II, section 3): 1

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A.

Core Physician will work full-time (i.e., according to AMA survey data for specialty but no less than an annual average of forty [40] hours per week) and will be compensated with cash and other value as follows: Core Physician will be paid Four Thousand Twenty-Four Dollars and Eighteen Cents ($4,024.18) biweekly not to exceed One Hundred Four Thousand Nine Hundred Eighty-Seven Dollars ($104,987) annually. County will withhold from said daily compensation of Core Physician all applicable federal, state and local payroll taxes. County will pay the employer's portion of the hospital insurance portion of Social Security (FICA 2). B. Core Physician will be paid biweekly on the same schedule as regular fulltime County employees. The exact date of said biweekly payments will be at the sole discretion of County, as is reasonable and convenient for County. C. No adjustment in compensation will be effective without a written amendment to this Agreement. D. The maximum payable under this Agreement, including base salary and professional fees paid by County to Core Physician pursuant to Article II, section 5, paragraph A, will not exceed Five Hundred Ninety-Nine Thousand Nine Hundred Thirty-Five Dollars ($599,935) over the five-year term of this Agreement. E. County will reimburse Core Physician for moving expenses (defined as the moving of household goods and vehicles) associated in moving from Glendora, California, to Bakersfield, California, in an amount not to exceed Six Thousand Dollars ($6,000), payable in arrears. in accordance with County policy.

. 2.

OVERALL COMPENSATION STRUCTURE A. The purpose of this Compensation Plan is to provide market-based compensation that recognizes a Core Physician's efforts and contributions toward promoting the mission and values of KMC. Core Physician will be identified as such in this Agreement. B. Total compensation for Core Physician will be composed of a base salary paid by County and potential other income generated due to the individual's status as a physician. These two sources of income shall be referred to in this Agreement as Total Core Physician Compensation. The structure for determining Total Core Physician Compensation shall be referred to in this Agreement as the Compensation Plan. C. A Kern County clearing account and a KMC compensation budget unit will be established to account for all funds generated and received to pay Total Core Physician Compensation and to pay all expenses associated with this Compensation Plan. These will act as trust accounts and will be solely used for this purpose.

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D. A Plan Administrator will be retained by KMC to administer this Compensation Plan and will report to the Faculty Practice Board. E. A Board of Directors will be established to oversee the Compensation Plan and the Plan Administrator of the Compensation Plan. This Board of Directors shall be referred to in this Agreement as the Faculty Practice Board. The Faculty Practice Board will establish bylaws including powers, duties and responsibilities to be approved both by a simple majority of the Faculty Practice Board and the CEO of KMC. F. An assessment for administrative expenses shall be made on Total Core Physician Compensation to support the administrative expenses of the Compensation Plan. (1) The amount or percentage of the assessment shall be determined annually by the Faculty Practice Board. (2) Administrative expenses shall include the salary and benefits for the Plan Administrator and any staff hired by KMC to support the Plan Administrator, expenses of the Kern County Pension Plan for Physician Employees, and other business expenses as determined by the Plan Administrator and the Faculty Practice Board. G. County agrees to assume liability for and indemnify and hold harmless Core Physician against all claims, losses, expenses, costs, actions, settlements, attorneys' fees and judgments incurred by Core Physician or for which Core Physician becomes liable to pay, arising out of or in connection with or related to the services rendered or which a third party alleges should have been rendered by Core Physician pursuant to this Agreement. The obligation of County under this paragraph shall arise as to all incidents occurring on and after July 1, 2007, and prior to termination or expiration of this Agreement This paragraph shall survive the termination or expiration of this Agreement and shall apply to all claims made during or after the tennination or expiration of this Agreement, which allegedly arise out of services rendered or which should have been rendered by Core Physician during the term of this Agreement. The liability coverage of this paragraph shall not apply to services at sites other than KMC unless approved by the Kern County Board of Supervisors. H. County shall indemnify and defend Core Physician to the same extent as would be afforded to a regular full-time County employee. Said duty of defense and indemnity shall not apply to intentional or willful misconduct, gross negligence, dereliction or criminal misconduct on the part of Core Physician. and further shall not extend to any conduct, actions or activities that do not arise directly from the performance of this Agreement.

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BASE SALARY (ITEMS INCLUDED AND METHOD OF PAYMENT)

A. Base salary is compensation paid to Core Physician by County for. (1) patient care for Medically Indigent Adults (MIA), as defined by California Welfare and Institutions Code sections 17000 et seq., and adults and juveniles incarcerated and detained in County facilities; (2) as a safety-net provider, partial compensation for under-compensated and uninsured patients; (3) teaching; (4) administrative duties; and (5) other activities approved by the CEO of KMC and the Faculty Practice Board. County shall fund the clearing account unit biweekly with an amount equal to Core Physician's biweekly base salary. The base salary, less the assessment for administrative expenses, will be reported as wages and subject to all appropriate federal and state taxes. The base salary will be considered the minimum compensation that Core Physician shall receive under this Compensation Plan. B. The base salary will be negotiated between the parties and set out for each Core Physician at the end of twelve (12) months by means of an amendment to this Agreement. The base salary will be based on a benchmark salary in proportion to Core Physician's full-effort commitment. (1) The structure of benchmark salaries is based upon a national standard with four salary steps: "A", "B", "C" and "D." There are three criteria for step placement: level of clinical service, teaching, and administrative duties. This benchmark salary structure and criteria for step placement are set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual. (2) The Faculty Practice Board shall establish the criteria for measuring the full-effort commitment. The Department Chairs, with approval of the Faculty Practice Board, will establish the expected levels of the criteria to meet a full-effort commitment. The criteria for measurement of full-effort commitment are set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual. (3) Research shall not be considered as part of Core Physician's full-effort commitment. Research activity will be compensated as set forth in the KMC Faculty Practice Administrative Policies and Procedures Manual.

4.

PROFESSIONAL FEES

Professional fees include all professional fee collections or payments associated with direct patient care by Core Physician. This shall be referred to in this Agreement as professional fees. Core Physician's practice group is responsible for billing and collecting all professional fees for Core Physician's services. Core Physician will have a separate tax identification number. A.

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B. Professional fee billing by Core Physician's practice group shall be made by a billing service company, approved in advance by the Faculty Practice Board, and based upon minimum performance standards set by the Faculty Practice Board. All professional fees collected by the billing service for Core Physician shall be paid to the clearing account. The billing service will maintain individual and practice group records on professional fee billing and collections and will account for such to the Plan Administrator. C. From gross professional fees collected, County shall deduct (i) the assessment for administrative expenses and (ii) overhead expenses for Core Physician's practice group. D. Net professional fees will be paid monthly directly from the clearing account, as directed by Core Physician or Core Physician's practice group, as a distribution to Core Physician. Core Physician will be responsible for all appropriate federal and state taxes and withholding requirements. 5.

PROFESSIONAL FEE GUARANTEE

A.

Notwithstanding any other provision of this Agreement to the contrary, County agrees that the amount of net professional fees to be paid by County to Core Physician will not be less than Seventy-Five Thousand Dollars ($75,OOO), prorated monthly in twelve (12) equal installments, for a period not to exceed twelve (12) months from July 1, 2007, the effective date of this Agreement rMonthly Guarantee"). Such Monthly Guarantee is based on the assumption that the patient activity of Core Physician will be in accordance with the attached job description and medical records documentation by Core Physician regarding supervision of resident physicians and care prOVided will conform to the requirements for evaluation and management (ElM) services billed by teaching physicians set forth in the Medicare Carriers Manual, Part 3, sections 15016 -15018, inclusive. B. Core Physician hereby assigns to KMC and agrees that KMC shall have the exclusive right to collect gross professional fees with a date of service between the period July 1, 2007 and June 30, 2008, inclusive, for services provided by Core Physician under this Agreement for the twelve (12) month period beginning July 1, 2007 through June 30, 2008, or until such time during the twelve (12) month period as the gross professional fees collected by County for services provided by Core Physician under this Agreement, net of the cost of the assessment for administrative expenses and overhead, exceeds Seventy-Five Thousand Dollars ($75,000) ("Guarantee Period"). The gross professional fees collected (i) in any given month during the twelve (12) month period and (ii) with a date of service between the period July 1, 2007 and June 30, 2008, inclusive, which exceeds the Monthly Guarantee and any balance owing from prior months and after allocation of the assessment for administrative expenses and overhead will be paid monthly directly from the clearing account, as directed by .Core Physician or Core Physician's practice group, as a distribution to Core Physician. Core Physician will

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be responsible for all appropriate federal and state taxes and withholding requirements. C. County will undertake a reconciliation of the professional fees collected, for services provided by Core.Physician through June 30, 2008, no later than the end of one hundred twenty (120) days from the conclusion of the Guarantee Period. Any professional fees collected after completion of the reconciliation, regardless of when the services were provided, will be paid monthly directly from the clearing account, as directed by Core Physician or Core Physician's practice group, as a distribution to Core Physician. Core Physician will be responsible for all appropriate federal and state taxes·and withholding requirements.

6.

OTHER INCOME A. Other income IS Income generated due to the individual's status as a physician, which includes, but is not limited to, royalties, grants, speaker fees, professional witness fees, and other nonprofessional fees. All other income will be paid to Core Physician in accordance with instructions provided by Core Physician. B. Income generated by Core Physician that is deposited to the Community Medical Education and Research Foundation (UCMERF") for department educational use shall not be included as other income and shall not be subject to the assessment for administrative expenses. Article III.

BENEFITS 1.

EFFECTIVE DATE OF BENEFITS . The date of employment for the purpose of receiving and accruing benefits listed in this Article III shall not be affected by the date of this Agreement, but shall be the date Core Physician was first continuously employed by KMC.

2.

HEALTH INSURANCE County shall provide to Core Physician and eligible dependents medical, dental and vision insurance as provided to other regular County employees of KMC. Core Physicians first hired by the County of Kern after April .15, 1997, must pay twenty percent (20%) of the cost of their health benefits. County may change the benefits provided under this insurance as such benefits shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

3.

PAID LEAVE OF ABSENCE Core Physician will receive paid leave for holidays, vacation, sick leave and educational leave.

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A. Holidavs: Core Physician shall be entitled to such holidays as provided to full-time County employees of KMC. County may change the holidays provided under this section as such holidays change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement. B. Vacation: For each pay period of service, Core Physician shall be credited with a vacation entitlement of 6.15 hours, for a maximum accrual of 160 hours per year. Total unused vacation accumulated shall not exceed a maximum of 320 hours. No further vacation entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued vacation entitlement shall be credited to a maximum of 320 hours. Unused vacation benefits will be credited to Core Physician to a maximum of 320 hours if this Agreement is renewed. Core Physician will be paid for accrued and unused vacation hours upon termination of employment. C. Sick Leave: For each pay period of service, Core Physician shall be credited with sick leave credit for illness or accident of 2.46 hours, for a maximum accrual of 64 hours per year. After five years of employment, Including full-time employment prior to the effective date of this Agreement, Core Physician shall earn and accrue sick leave credit for illness or accident at the rate of 3.07 hours for each pay period of service for an annual accrual of 80 hours per year. Total unused sick leave accumulated shall not exceed a maximum of 1152 hours. No further sick leave entitlement shall be credited so long as Core Physician has the maximum hours credited. If Core Physician is presently employed by the County of Kern, accrued sick leave shall be credited to a maximum of 1152 hours. Unused sick leave will be credited to Core Physician to a maximum of 1152 hours if this Agreement is renewed. Core Physician will not be paid for accrued and unused sick leave upon termination of employment. County polley applicable to other regular County employees of KMC regarding use of sick leave shall apply to Core Physician. D. Educational Leave: Core Physician shall receive 80 hours paid education leave annually. The first 80 hours shall be credited on the effective date of the Core Physician's employment contract. On each successive anniversary date of that contract, an additional 80 hours shall accrue. Education leave must be used within the year that it is accrued and unused education leave does not accrue to the following contract year. Unused education leave will not be paid upon termination of employment. All education leave must be approved in advance of use by Core Physician's Department Chair and the Medical Director. .

4.

UNPAID LEAVE OF ABSENCE

County shall provide Core Physician the right to unpaid leave of absence provided to other regular County employees of KMC pursuant to County policy. County may change its policy regarding leave of absence, as its policy for leave of absence shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement

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RETIREMENT PLAN A. Core Physician shall participate in the Kern County Pension Plan and Trust Agreement for Physician Employees (the "Plan"), a qualified defined contribution pension plan, pursuant to the terms of the instrument under which the Plan has been established (the "Plan Document"), as from time-ta-time amended. County and Core Physician contributions for each Plan year (as defined in the Plan Document) under the amended and restated Plan document shall be as follows: County shall contribute as County's required contribution the sum of SeventeeFl Thousand Five Hundred Dollars ($17,500) for the account of Core Physician for each complete Plan year of service (as defined in the Plan Document) by Core Physician. Core Physician's mandatory employee contributions required under the amended and restated Plan Document shall be as follows:

If Core Physician's Compensation (as defined under the Plan (1) Document) was One Hundred Fifty Thousand Dollars ($150,000) or less during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Four Thousand Dollars ($4,000) for a complete Plan year of service by Core Physician; If Core Physician's Compensation was more than One Hundred (2) and Fifty Thousand Dollars ($150,OOO) but less than One Hundred and Seventy Thousand Dollars ($170,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Nine Thousand Dollars ($9,000) for a complete Plan year of service by Core Physician; If Core Physician's Compensation was One Hundred Seventy (3) Thousand Dollars ($170,000) or more but less than One Hundred Eighty Thousand Dollars ($180,000) dUring the immediately preceding Plan year, Core Physician's mandatory employee contribution reqUired under the Plan Document shall be Twelve Thousand Five Hundred Dollars ($12,500) for a complete Plan year of service by Core Physician; (4) If Core Physician's Compensation was One Hundred and Eighty Thousand ($180,000) or more but less than One Hundred Ninety Thousand Dollars ($190,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be Seventeen Thousand Five Hundred Dollars ($17,500) for a complete Plan year of service by Core Physician; and

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(5) If Core Physician's Compensation was at least One Hundred Ninety Thousand Dollars ($190,000) during the immediately preceding Plan year, Core Physician's mandatory employee contribution required under the Plan Document shall be the maximum amount permitted by Internal Revenue Code section 415(c)(1) reduced by the County contribution for the account of Core Physician for the Plan year.

B.

Core Physician's mandatory employee contributions shall be withheld by County from Core Physician's biweekly salary in relatively equal amounts. Total contributions by Core Physician and County will not exceed the yearly amount allowed by law; provided, however, if any amounts are contributed in excess of such permissible amounts, the excess contribution shall be corrected as provided in the Plan Document or under law. Any changes in the Plan Document will control the terms of this Agreement. County's required contribution for the account of Core Physician and Core Physician's mandatory employee contributions are also subject to all of the transition rules contained in the Plan as it now exists or may be hereafter amended which may reduce the amount of contribution. The transition rules include, but are not limited to, those contained in sections 3.3(b), 3.3(d), 3.5, and 3.6 of the amended and restated Plan Document. Core Physician (together with all Plan participants) shall be responsible for a pro rata share of the annual costs of administering the Plan. Due to the manner in which Plan participant accounts are held and invested, most such costs cannot be paid directly from Plan assets. To facilitate payment of such costs, County shall advance such costs for so long as County determines such an arrangement is necessary or desirable. To offset such costs, County shall reduce its contribution to the Plan for Core Physician by Core Physician's pro rata share of such costs as determined under the Plan Document. C. If the fixed contribution structure described in the immediately preceding paragraph A results, or would result, in the Internal Revenue Service not issuing a favorable determination letter for the Plan under the amended and restated Plan Document, the County reserves the right to substitute another contribution structure which will be designed to maximize benefit to Core Physician on a cost-neutral basis to County, and such substitute contribution structure shall control the terms of this Agreement. County will consult with the Pension Committee, as identified in the Plan Document, with respect to such substitute contribution structure. D. County's required contribution and all mandatory employee contributions will be paid to such financial services firm(s) as determined under the Plan Document. If, pursuant to the Plan Document, Plan assets are allocated to separate accounts for each Plan participant, such financial services firm(s) shall be solely responsible for allocating Core Physician's contribution amount and Investment experience to his or her account. If, pursuant to the Plan Document, Plan participants control the investment of their accounts at such financial services firm(s), the investment of Core Physician's Plan account through such financial services firm shall be

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determined by Core Physician. County shall not be liable for the Investment experience of Core Physician's Plan account. E. Core Physician is not eligible to participate in any other retirement plan established or funded by County for Its employees, including but not limited to the Kern County Employees' Retirement Association, and this Agreement does not confer upon Core Physician any right to claim entitlement to benefits under any such retirement plan(s). 6.-

SOCIAL ~ECURITY AND MEDICARE TAXES

Core Physician is exempt from payment of Social Security taxes as the Kern County Pension Plan for Physician Employees is a qualified alternative to the insurance system established by the federal Social Security Act. Core Physicians employed before March 31, 1986, will continue to be exempt from the payment of Medicare taxes.

7.

DEFERRED COMPENSATION PLAN

Core Physician shall be eligible to participate in the Kern County Deferred Compensation Plan I on the same basis and to the same extent as full-time County employees. County may change its Deferred Compensation Plan as it shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

8.

KERN$FLEX PLAN

Core Physician shall be eligible to participate In the Kern$Flex Plan I on the same basis and to the same extent as eligible County employees. County may change Its Kern$Flex Plan, as its policy for Kern$Flex shall change for other County employees of KMC. Any such change by County shall not be a breach of this Agreement.

9.

EXPENSE REIMBURSEMENT A. Core Physician will be reimbursed for approved and necessary expenditures related to continuing education Including seminar fees, travel and study materials. Reimbursement for travel, lodging and meals shall be upon the same terms and rates as allowed for County employees of KMC. Core Physician will be reimbursed expenses and materials not to exceed two thousand five hundred dollars ($2,500) per year.

B. Core Physician will be reimbursed for approved and necessary expenditures related to education and training as directed by KMC. Reimbursement for travel, lodging and meals shall be upon the same terms and rates as allowed for County employees of KMC.

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C. Reimbursement for expenses incurred in generating other income will be reimbursed as set forth in Article II, section 5, above. Article IV. TERMINATION AND CORRECTIVE ACTION

1.

TERMINATION OF AGREEMENT

A. Termination without Cause by Core Physician. Core Physician shall have the right to terminate this Agreement without penalty or cause, by giving not less than one hundred twenty (120) days' prior written notice to County.

8. Termination without Cause by County.. It is understood and agreed that County shall have the right to terminate this Agreement as of the first anniversary date from the Effective Date without penalty or cause, by giving no less than one hundred twenty (120) days' prior written notice to Core Physician. C. Termination for Cause. County may terminate this Agreement at any time for cause. Cause is defined as a violation of administrative policy of the County of Kern or KMC, unsatisfactory clinical performance, failure to meet department accountability or performance standards, or reduction of need. County may terminate this Agreement based upon reduction of need upon ninety (90) days' prior written notice to Core Physician. D. Effect of Termination on Medical Staff Membership. Termination of this Agreement by County does not per se affect medical staff membership. Actions affecting medical staff membership and clinical privileges are governed solely by the medical staff bylaws. E. Effect of Termination Generally. In the event of termination of this Agreement for any reason, County shall have no further obligation to pay for any services rendered or expenses incurred by Core Physician after the effective date of the termination. Core Physician shall be entitled to receive base salary from County for services satisfactorily rendered, calculated on a prorated basis up to the effective date of termination.

2.

CORRECTIVE ACTION

A. Core Physician is subject to corrective action for violation of administrative policy of the County of Kern or KMC, unsatisfactory clinical performance, or failure to meet department accountability or performance standards. Such corrective action may include, without limitation, additional training and education, a verbal or written warning, a written reprimand, suspension with or without pay, and termination.

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B. Corrective action for unsatisfactory clinical performance is governed by the medical staff bylaws. C. Corrective action is not required if the problem involves a serious ethical or clinical breach, a violation of law or a serious violation of County of Kern or KMG policy that merits immediate termination for cause.

3.

REVIEW AND APPEAL PROCESS Review and appeal of the decision to impose corrective action or terminate for cause shall follow the process set forth In the KMC Faculty Practice· Board policy and procedure, titled Corrective Action and Termination Review Process, or the medical staff bylaws, whichever is applicable.

Article V. GENERAL PROVISIONS 1.

ASSIGNMENT Core Physician shall not assign or transfer this Agreement or Core Physician's obligations hereunder, or any part thereof. Core Physician shall not assign any money due or which becomes due to Core Physician under this Agreement without the prior written approval of County.

2.

ASSISTANCE IN LITIGATION Core Physician agrees to be available to County, at no cost to County, to testify as an expert witness or otherwise, in the event of litigation under any cause of action being brought against County or KMC, its directors, officers or employees except where Core Physician is a named party. KMC will credit the time spent in preparation and testimony as administrative time as defined in the Compensation Plan.

3.

AUTHORITY TO BIND COUNTY It is .understood that Core Physician, in Core Physician's performance of any and all duties under this Agreement, has no authority to bind County or KMC to any agreements or undertakings.

4.

CAPTIONS AND INTERPRETATION Paragraph headings in this Agreement are used solely for convenience, and shall be wholly disregarded in the construction of this Agreement. No provision of this Agreement shall be interpreted for or against a party because that party or its legal representative drafted such provision, and this Agreement shall be construed as if jointly prepared by the parties.

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CHOICE OF LAWNENUE The parties hereto agree that the provisions of this Agreement will be construed pursuant to the laws of the state of California. This Agreement has been entered into and is to be performed in the County of Kern. Accordingly, the parties agree that the venue of any action relating to this Agreement shall be in the County of Kern.

6.

CONFLICT OF INTEREST The parties to this Agreement have read and are aware of the provisions of sections 1090 et seq. and sections 87100 et seq. of the California Government Code relating to conflict of interest of public officers and employees. All parties hereto agree that they are unaware of any financial or economic interest of any public officer or employee of County relating to this Agreement. It is further understood and agreed that if such a financial interest does exist at the inception of this Agreement, County may immediately terminate this Agreement by giving written notice thereof. Core Physician shall comply with the requirements of California Government Code sections 87100 et seq. during the term of this Agreement.

7.

'

COMPLIANCE WITH KMC AND COUNTY POLICIES Core Physician will comply with all applicable KMC and County policies and procedures. Core Physician will keep daily time sheets on forms supplied, and in the manner specified, by KMC. Core Physician will conform to office policy and routine as established by the Department of which Core Physician is a member, including but not limited to orientation, attendance at case conferences, supervision, in service education. patients' rights functions and performance improvement activities. Core Physician shall submit to drug testing, other laboratory testing and physical examinations as may be required by County.

8.

COMPLIANCE WITH LAW Core Physician shall observe and comply with all applicable County. state and federal laws. ordinances, rules and regulations now in effect or hereafter enacted, including but not limited to JCAHO, Title 22, California Code of Regulations. EMTALA, all federal and state billing requirements including Medi-CallMedicaid and Medicare billing regulations, EEOC, HIPAA. FEHA and Cal-OSHA. Core Physician will at all time meet state and federal licensure and County personnel qualifications for the practice of medicine.

9.

COUNTERPARTS This Agreement may be executed simultaneously in any number of counterparts. each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

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EMPLOYMENT STATUS Core Physician shall be employed by the County of Kern pursuant to the terms of Core Physician this Agreement and the medical staff bylaws of KMC. acknowledges that Core Physician will not be deemed a classified employee, or have any rights or protections under the County's Civil Service Ordinance, rules or regulations.

11.

ENFORCEMENT OF REMEDIES No right or remedy herein conferred on or reserved to County is exclusive of any other right or remedy herein or by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing by law or in equity or by statute or othelWise, and may be enforced concurrently or from time to time.

12.

MEDICAL RECORDS Any and all patient medical records and charts produced as a result of either party's performance under this Agreement shall be and remain the property of County. During the term of this Agreement, Core Physician shall be permitted to inspect or duplicate any patient's medical record or chart to the extent necessary to meet professional responsibilities to such patient or to assist in the defense of any malpractice or similar claim to which such medical record or chart may be pertinent, provided such inspection or duplication is permitted and conducted in accordance with applicable legal requirements and pursuant to commonly accepted standards of patient confidentiality. Core Physician shall be solely responsible for maintaining patient confidentiality with respect to any information obtained pursuant to this paragraph and will comply with all federal and state laws and regulations regarding patient confidentiality.

13.

MEDICAL STAFF MEMBERSHIP Core Physician will at all times be a member in good standing of the medical staff of KMC and governed as such by the medical staff bylaws. This Agreement may be terminated immediately if Core Physician's membership or privileges are modified or restricted pursuant to action under the medical staff bylaws such that services performed by Core Physician are limited or restricted. Prior to performing duties, Core Physician will: (a) complete an application for medical staff membership; (b) provide proof of current license from the Medical Board of California; (c) prOVide proof of current DEA certificate; and (d) meet with the medical staff office to ensure appropriate documentation is present for credentialing of medical staff privileges.

14.

MODIFICATIONS OF AGREEMENT This Agreement may be modified in writing only, signed by the parties in interest at the time of the modification.

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NON-APPROPRIATION County reserves the right to terminate this Agreement in the event insufficient funds are appropriated or budgeted for this Agreement in any fiscal year due to closing of a clinical department or KMC. Upon such termination, County will be released ffOro any further financial obligation to Core Physician, except for services performed prior to the date of termination or any liabnity due to any default existing at the time this paragraph is exercised. Core Physician will be given thirty (30) days' prior written notice in the event that County requires such an action.

16.

NON-DISCRIMINATION The parties mutually agree to abide by all laws, federal, state and local, and by all policies of the County of Kern respecting discrimination. The parties shall not discriminate on the basis of race, color. national origin, age, religion, marital status or sexual preference.

17.

NON-WAIVER No covenant or condition of this Agreement can be waived except by the written consent of County. Forbearance or indulgence by County in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by Core Physician. County shall be entitled to invoke any remedy available to County under this Agreement or by law or in equity despite said forbearance or indulgence.

18.

NOTICES Notices to be given by one party to the other under this Agreement shall be given in writing by personal delivery, by certified mail, return receipt requested. or express delivery service at the addresses specified below. Notices delivered personally shall be deemed received upon receipt; mailed or expressed notices shall be deemed received four (4) days after deposit. A party may change the address to which notice is to be given by giving notice as prOVided above.

19.

Notice to Core Physician:

Notice to County:

Gian A. Yakoub, D.O. 529 N. Wildwood Avenue Glendora. California 91741

Kern Medical Center 1830 Flower Street Bakersfield, California 93305 Attn.: Chief Executive Officer

PROFESSIONAL RESPONSIBILITIES Core Physician will perform the services and duties set forth in this Agreement in a diligent and conscientious manner in accordance with accepted professional and ethical standards of the medical profession and the medical staff bylaws of KMC.

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RELATIONSHIP County and Core Physician recognize that Core Physician is rendering specialized, professional services. The parties recognize that each is possessed of legal knowledge and skill, and that this Agreement is fully understood by the parties, and is the result of bargaining between the parties. Each party acknowledges their opportunity to tully and independently review and consider this Agreement and affirm complete understanding of the effect and operation of its terms prior to entering into the same.

21.

SEVERABILITY Should any part, term, portion or provision of this Agreement be decided finally to be in conflict with any law of the United States or the state of California, or otherwise be unenforceable or ineffectual, the validity of the remaining parts, terms, portions, or provisions shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to constitute the agreement which the parties intended to enter into in the first instance.

22.

SOLE AGREEMENT This Agreement, including all attachments hereto, contains the entire agreement between the parties relating to the services, rights, obligations and covenants contained herein and assumed by the parties respectively. No inducements, representations or promises have been made, other than those recited in this Agreement. No oral promise, modification, change or inducement shall be effective or given any force or effect. [Intentionally left blank]

16

0026190

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IN WITNESS TO THE FOREGOING, the parties have executed this Agreement as of the day and year first written above. COUNTY OF KERN

,---.,

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CONTRACT EMPLOYEE

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Gran A. Yakoub, 0.0/

Chalrnlan Board of Supervisors

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APPROVED AS TO CONTENT: KERN MEDICAL CENTER ! -, '

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/ '. /, ' 1 By !-, j .j . Paul J. Hensler Chief Executive Officer -.

KERN COUNTY PERSONNEL By

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Lawrence D. Espinosa Interim Director

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APPROVED AS TO FORM: OFFICE OF COUNTY COUNSEL

!\greement.Yilkoub.053007

17

0026191

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Document 277-5

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Exhibit "A" Job Description Gian A. Yakoub, D.O. The Department of Pathology provides professional anatomic and clinical pathology services to Kern Medical Center and oversees the administration and operation of the clinical laboratory, blood bank and histology and department administrative services. Key duties center upon providing high quality, timely and cost effective patient care. Position Summary: Reports to Chairman, Department of Pathology. Clinical Responsibilities: Provides professional pathology services required to process, interpret and report of pathology specimens, including but not limited to surgical pathology specimens, bone marrow specimens, non-gynecologic and gynecologic cytology specimens and fine needle aspirates. 1. Performs collection procedures, such as bone marrow aspiration and biopsy, fine needle aspiration and skin punch biopsies. 2. Performs medical autopsies and prepares complete autopsy reports. 3. Performs professional surgical pathology, cytopathology and hematopathology services on a rotational basis with one or more pathologist. 4. Performs call coverage on a proportional basis with two other pathologists. 5. Serves as a clinical pathologist and co-laboratory director covering clinical laboratory and blood bank services. 6. Responsibly examines and interprets clinical microscopy specimens, such as body fluid, urine, sputum, peripheral blood and other clinical specimens. 7. Completes all service work in a timely, accurate and professional manner. Administrative Responsibilities: 1. Follows department rules as specified in the pathology department policies and procedures. 2. Attends histology and pathology department meetings as scheduled. 3. Attends other laboratory meetings as appropriate or assigned by the department chairman. 4. Attends inter-departmental meetings and committees as assigned by the department chairman and president of the medical staff. 5. Attends general medical staff meetings on a semi-annual basis. 6. Participates in the training of hospital physician residents and medical students, including the review of active and past case material as required for patient care. 1. Participates in quality assurance, quality management and quality improvement activities, including peer review and quality control functions of the pathology service. 8. Participates in proficiency testing and performance improvement programs as required.

18

0026192

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Assignments: Work assignments will be based upon a work schedule of 44 weeks per year on a flexible basis that fulfills the needs of the department. Medical Record Documentation: Documentation by Core Physician witl conform to the requirements for evaluation and management (ElM) services billed by teaching physicians set forth in the Medicare Carriers Manual, Part 3, sections 15016 -15018, Inclusive. [Intentionally left blank]

19

0026193

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1 2 3 4 5 6

Document 284

Filed 12/01/2008

Page 1 of 7

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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

DAVID F. JADWIN, D.O.,

12 13 14

Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

15

Defendants.

16 17

Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 The undersigned hereby declares as follows: 20 1.

I am the Plaintiff in this action. I was employed by Defendant County of Kern from

21 October 2000 to October 2007. 22 2.

I am making this declaration in support of Plaintiff’s Opposition to Defendants’ Motion

23 Summary Judgment. I have personal knowledge of the matters set forth below and I could and would 24 competently testify thereto if called as a witness in this matter. 25 3.

I have never threatened to take a leave of absence until the KMC medical staff and

26 administration apologized to me. Nor did I ever communicate or suggest any intention to do that to 27 Philip Dutt or anyone else. 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

1

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

1

4.

Document 284

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I spoke with Peter Bryan in early January 2006 to request a medical leave. He specifically

2

approved my request and told me I could go on my reduced work schedule leave immediately. He told

3

me he would take care of having Human Resources deliver to methe paperwork required for filing of the

4

request. . As it turned out, he either did not communicate this adequately to Human Resources or

5

Human Resources did not act appropriately as I did not receive the paperwork until April 2006. As soon

6

as I obtained the medical leave paperwork, I promptly filled it out and submitted it to Human Resources.

7

I also promptly obtained a medical leave certification from my therapist and submitted that within a

8

short time after. I never needed nor received any prompting from Human Resources to submit the leave

9

request forms and medical certification.

10

5.

I issued Fine Needle Aspiration (“FNA”) diagnoses in final form and released for

11

viewing by clinicians PRIOR to sending reports out to UCLA for confirmatory review. When the

12

Pathology department later received UCLA’s confirmatory reports, they were entered them into the

13

KMC computer system, which automatically updates the “Completed” report date to reflect the date of

14

the last modification to any report. The “Completed” date is NOT the date when I issued my own

15

diagnosis to clinicians, it is more analogous to a “last modified” date. This apparent confusion over

16

terminology led to suspicions that I was somehow fraudulently withholding my own diagnoses until

17

UCLA issued their reports so that I could ensure 100% congruence. Nothing could be further from the

18

truth. Had my accusers come to me with their suspicions, I would have been able to explain all this very

19

easily.

20

6.

Ms. Figueroa will testify that she did not and does not agree with Philip Dutt’s accusation

21

that I improperly left out two long blades and a scalpel on the morning of 12/7/06. In fact, I was just

22

beginning to prepare my workstation for that day’s work and had set the blades and scalpel out for

23

anticipated work purposes. I was not “finished” with them yet, and would not be for possibly several

24

more hours. The department protocol specifies that sharps should not be left on the cutting board

25

(overnight) when the pathologist is finished grossing. Gallegos could not recall any instances of sharps

26

being left out.

27

7.

I never told Scott Ragland that “the only important information on that [October 12, 2005

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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1

Cancer Conference] case was mine”. Rather, I had said that there were NO relevant clinical or radiologic

2

issues to be discussed in this particular case and that all decisions and discussion centered upon the

3

accuracy of the pathologic diagnosis. There were no pertinent clinical history or findings and there were

4

no radiologic findings to present. Therefore all subsequent clinical discussion would be dependent upon

5

the patient’s pathologic diagnosis, which had many processing errors and discordant final diagnoses

6

rendered by four different pathology services.

7

8.

At the 10/18/05 meeting, just days after the October Conference, Scott Ragland began by

8

sarcastically saying “So Dr. Jadwin, Mr. Perfect, here we are again, having problems with your behavior

9

again” He said that he had been chosen to give me the letter of reprimand.. I then said that I wanted

10

Peter Bryan to be immediately present and was told by Eugene Kercher that this was a “medical staff

11

issue” that did not need to involve the Bryan..Kercher then inappropriately shouted in a demeaning

12

manner: : “David if you needed more time [for your presentation], why didn’t you tell Dr. [Albert]

13

McBride beforehand?” Ragland appeared to be using the occasion to exact revenge on me for a recent

14

confidential physician health report I had made regarding his suspected impaired behavior, and

15

subsequently learned that Ragland had been told of my reporting, contrary to confidential procedure.

16

Ragland read a letter of reprimand aloud to me in a continued sarcastic derogatory tone, which stated

17

that letters of dissatisfaction from three conference participants would be placed in my file. When I

18

asked to see the letters of dissatisfaction, Irwin Harris said that I could not see them. When I turned to

19

address Kercher, as the President of the Medical Staff and the senior person in the room, Ragland

20

condescendingly barked at me, “Don’t look at him, look at me; I am the person you need to talk to!” and

21

“Noooo, don’t look at [Kercher] look at me. That’s riiight, you don’t need to look at him, you need to

22

look at me.” It was utterly humiliating. Kercher and Ragland did not attend the October conference and

23

were obviously acting on the basis of Harris’s and Abraham’s account of what happened at the October

24

Conference. Kercher, Ragland, and Harris never gave me an opportunity to give my side of the story or

25

otherwise defend myself against their accusations, and had no interest in hearing anything I would have

26

said had I been anything other than speechless by the events that transpired.

27

9.

Plaintiff issued a proctoring report on Philip Dutt on 1/18/06, which was completed just

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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1

several weeksafter I had hired him. The proctoring period is analogous to a probationary period during

2

which a preliminary assessment is made about the new staff’s ability to manage specimens in a

3

competent manner. Given the magnitude of required knowledge to handle hundreds of different

4

situations clinical and diagnostic dilemmas, it is not possible to make a full assessment of all

5

competencies the candidate might require, which instead is measured by ongoing peer review..

6

Regardless of proctoring, all pathology work undergoes continuous rigorous quality peer review to

7

ensure that the candidate and all other members of the department handle cases appropriately. As I

8

worked with Dutt more closely during the ensuing months, I was able to form a clearer, and very

9

different, opinion of his performance and determined that Dutt was insecure in his pathology duties and

10

functioned more like a junior pathologist or even a senior resident, than as a pathologist with several

11

years experience. For instance, in an environment where there are, frankly, few difficult or challenging

12

pathology cases, I eventually realized that Dutt submitted roughly 15% of his cases to a peer as

13

consultation to request help with making a diagnosis (category A/all cases); that only roughly 5% of his

14

cases underwent retrospective review (category C/all cases, indicating a reluctance to sign a case out

15

without oversight; that roughly 15% of his cases received additional diagnostics and/or processing

16

comments from other pathologists,both ((B1+C1)/(all B + all C) and (B1/all B). Based on my lengthy

17

experience as a pathology chairperson, I believe Dutt had many more consultations, prospective reviews

18

and discrepancies (As, Bs B1s and C1s) than would be expected for a senior or experienced

19

pathologist.. Dutt was often hesitant to exercise independent judgement and, when acting alone without

20

my oversight late in 2006, had made several professional errors.

21

10.

Around 11/1/06, I noticed that fallopian tubes specimens were left sitting on the counter,

22

without a requisition and unprocessed for several days.. I recorded this discovery in the exceptional

23

event log and reported it to Dutt. He responded by erroneously implying that I was responsible because I

24

had been interfering with Vangie Gallegos’s work.

25 26 27

11.

Around 11/6/06, I was not interfering with Gallegos’s work or in her work area, nor was I

creating more work for everybody as I was accused of doing. At no time did I do this. 12.

I disagree with Dutt that it would be demeaning and time consuming to have an employee

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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1

clock in and out. Further, I did not ask that the assistant clock in and out, but rather inform me when she

2

was going to be absent from the room for prolonged periods of time, a protocol that had been in place

3

for years..

4

13.

On or about 11/17/06, I was not escalating the situation with Dutt, blaming others or

5

attacking them. To this day, I do not know the basis for Dutt’s accusations and believe them to be

6

baseless. Whenever I asked him to provide more details, he refused. As for the “rush case” that Dutt

7

accused me of missing, to this day I do not know the basis for Dutt’s accusation and believe the

8

accusation is trivial if not even baseless.

9

14.

I disagree with Dutt’s accusations regarding proctoring for FNA and bone marrow

10

procedures, directed toward me in an angry and inappropriate maner.My position is that superficial FNA

11

procedures have no serious complications and are simpler to perform than drawing blood, which does

12

not require credentialing. Proctoring of Dr. Shertudke was performed to the best of my knowledge and

13

would be subsequently evaluated, none-the-less by monitoring the adequacy of her specimen collections.

14

Further, performing a sternal marrow collection using an appropriate needle guard is a safe and routinely

15

performed on children.

16

15.

On or about 11/22/06, I did not criticize Savita Shertukde in front of others, particularly

17

so as to demean her as Dutt was implying. I was never told what it was that I was supposed to have said

18

or given an opportunity to discuss this incident with Dr. Shertudke. As for Dutt’s attacks on my

19

character, I believe them to be baseless. Under my chairmanship, the Pathology department ran well and

20

harmoniously without an unusual number of complaints from members.

21

16.

On or about 12/4/06, I did not criticize Shertukde’s diagnosis without consulting others

22

first, refuse to get outside consultation on a difficult case, or fail to remove sharps from the cutting area

23

when done. Dutt’s accusations were baseless.

24

17.

On or about 12/5/06, I did not engage in “uncooperativeness” with Dutt, nor did I fail to

25

adhere to a “chain of command”, a term that did not exist in the department during my tenure as

26

department chair. Dutt’s accusations were baseless.

27

18.

Dr. McBride suggested substituting repeat prostate needle biopsies for the the radical

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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1

prostatectomy with repeat prostate needle biopsies which turned out to be negative, when I expressed

2

my concern regarding the equivocal diagnosis of cancer. The following day Dutt came into my office

3

and sheepishly said that I “had probably done this patient a great service”. Afterwards, Dutt began to

4

focus on and dispute the semantics of the diagnosis, rather than the propriety of the treatment course for

5

the patient (additional biopsies). He became obsessed with proving that the diagnosis was in fact cancer

6

and, ultimately, hoping to prove me wrong. The email he sent me on 12/6/06 is remarkable for its

7

pettiness and malice toward me. I never “stormed into [Dutt’s] office and said angrily ‘this isn’t cancer,

8

she missed it.’”. I didn’t “terminate” the conversation with Dutt as he suggests. Dutt’s accusations

9

contained in his email are too numerous to refute individually. In sum, I disagree with every accusation

10

contained in his email to me of 12/6/06 (Bates DFJ01476). Even had the repeat biopsies revealed cancer,

11

I believe that the equivocal presence of cancer should have required confirmation by a prostate cancer

12

expert and likely should have required repeat biopsies before subjecting a patient to a debilitating

13

prostatectomy. Further detailed conversation with the urologist should have been undertaken by the

14

original pathologist to make sure that the surgeon fully understood how equivocal the original diagnosis

15

was (2% in one out of 12 needle samples). I have subsequently learned that the patient, once informed

16

about the equivocal presence of cancer, elected not to proceed with radical prostatectomy based upon

17

subsequent biopsies which came back negative for cancer. I found no documentation in the medical

18

records that such discussion with the patient had occurred prior to my bringing this issue to the attention

19

of Dr. McBride. Had I not intervened that day and told McBride to consider delaying the radical

20

prostatectomy, I believe a radical prostatectomy based upon questionable pathology would have

21

occurred. That is the point which Dutt was disregarding in his fervor to retaliate against me.

22

19.

On or about 12/6/06, Dutt did not “counsel” me for refusing to send out a case, nor did I

23

refuse to send out, any case for consultation that turned out to be missed endometrial cancer, for which I

24

have no recollection and was not provided an opportunity to review even to date. Nor did I then do the

25

reverse and start pushing “a lot of cases out for consultation”. Dutt’s accusations were baseless. My

26

position was that prior to sending a case out for consultation all clinical information and pathology

27

materials should be assembled and sent with the original specimen(s), so as to give the consultant all

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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

1 2 3 4

Document 284

Filed 12/01/2008

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relevant information. 20.

On or about 12/7/06, I did not “command” Figueroa to treat placentas so as to

countermand Dutt’s order that only Gallegos was to work with placentas. Dutt’s acussation is baseless. 21.

I was not uncooperative with Dutt after returning from leave on 10/4/06. Rather, I found

5

myself the target of an unending flurry of unsubstantiated allegations and generalized personal attacks

6

from Dutt. Dutt’s emails to me literally seemed to have no end, as if he were spending his day drafting

7

them in his office to attack me. I found Dutt’s behavior following my return to KMC in October 2006 to

8

be bizarre, harassing and unexplicably hostile compared to the cordial working relationship we had prior

9

to my medical leave.

10 11 12

22.

After my return from leave, I was not creating a hostile work environment. Dutt’s

accusation was baseless. 23.

I did not try to avoid conversations with Dutt. We had several email exchanges which

13

demonstrated my willingness to communicate with him and work out the many accusations he was

14

making against me. I did not make excuses to leave the room or hospital so as to evade communicating

15

with Dutt. If Dutt was finding it difficult to talk with me, the problem did not lie with me. I disagree

16

with Dutt’s implication that it did. As for peer review, on numerous occasions, I asked Dutt to give me

17

access to slides and disclose to me so-called diagnostic errors found during peer review of my case

18

diagnoses. He refused to allow me to review these slides, which is contrary to standard peer review

19

principle.. Dutt’s contention that he had no choice but to send my reports to the Peer Review Committee

20

because I wasn’t permitting him to speak with me is patently absurd.

21 22 23

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

24 25

Executed on: December 1, 2008

26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

6 7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

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

12 13 14 15 16 17 18

v. COUNTY OF KERN, et al., Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)] Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

19 20 21 22 23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

1

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

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Plaintiff DAVID F. JADWIN, D.O., contends Defendants have failed to lay any foundation whatsoever for any of the over 1,000 pages of documents or deposition transcripts which they attach as exhibits to their Motion. “It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.” Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988) (citing to Fed.R.Civ.P. 56(e)). A proper foundation must be established for documents used to support or oppose summary judgment motions. Orr v. Bank of America, NT & SA (9th Cir. 2002) 285 F3d 764, 778. As with other documentary evidence, discovery documents must be properly authenticated (e.g., by affidavit or declaration establishing accuracy of copy attached). Id. at 774. A portion of a deposition transcript must be properly authenticated by showing the deponent’s name and attaching the court reporter’s certification. Ibid. In submitting their Motion, Defendants have failed to lay any foundation whatsoever for any of the over 1,000 pages of documents or deposition transcripts which they attach as exhibits to their Motion. Other than 5 “sham” declarations intended only to controvert sworn deposition testimony, Defendants have failed to submit a single affidavit or declaration. The deposition transcripts are condensed transcripts intended only for informal attorney use which are not accompanied by reporter certifications. Plaintiff separately submits evidentiary objections to Defendants’ Motion. The complete absence of admissible evidence justifies denial of Defendants’ Motion. Plaintiff hereby submits the following additional objections to, and moves to strike all, evidence submitted by Defendants in support of their Motion for Summary Judgment, including the following: Δ’s MATERIAL FACT

Δ’s EVID.

Π’S OBJECTIONS TO EVIDENCE

1. First Employment Contract between Kern Medical Center (hereinafter referred to as KMC) and David F. Jadwin, D.O. (hereinafter referred to as Jadwin) entered into on October 24, 2000.

DFJ0002500046

None.

2. Employment Verification letter of 3/3/05 (giving original date of hire as December 3, 2000).

DFJ00358

None.

21 22 23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

2

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

1 2 3 4 5 6 7 8 9 10 11

Document 283

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3. Memo from Bryan to Jadwin dated 8/14/01 (showing Jadwin received the Medical Staff Bylaws).

0000202203

Lacks foundation. Document not authenticated. Document not complete – wrong bylaws effective as of 12/13/04 attached.

4. Medical Staff Bylaws, approved as of 12/13/04.

0000272358

None.

5. Exhibit A to Employment Contract (stating responsibilities and duties of the pathology dept. chair are set out in the KMC Medical Staff Bylaws, sections 6. through 6.4-3).

DFJ00046

Lacks foundation. Document not authenticated. Document not complete, the exhibit is provided without the contract.

6. Second Employment Contract between KMC and Jadwin was effective October 5, 2002.

00014791499

Hearsay. Best evidence rule. None.

a) Exhibit A to the Second Employment Contract: Job Description, David F. Jadwin, M.D., Pathology Chairman.

None.

7. Letter to Peter Bryan (hereinafter DFJ00723 referred to as Bryan) from Jadwin, dated 1/9/06, requesting administrative leave with pay until hostile environment is corrected. He demanded action on 1) sending transfusion Product Chart Copies (hereinafter referred to as PCCs) to the blood bank; 2) KMC’s alleged lack of compliance with their weekly oncology conferences by reporting themselves (KMC) to the American College of Surgeons (hereinafter referred to as ACS); 3) reviewing time limits on pathology presentations; and 4) implementing protocol of collection of Fine Needle Aspiration (hereinafter referred to as FNA) specimens.

Document not complete, second page is missing.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

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7A. Dutt recalled Jadwin’s threat of taking a leave of absence until the medical staff and the administration apologized to him.

Document 283

Page 4 of 45

3

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper Speculation as to Plaintiff’s intent.

4

Misstates the testimony. Dutt was speculating:

5

Q. He told you, I'm going to take a leave of absence to pressure the administration to apologize? A. What he said was I'm going to take a leave of absence. That occurred in the context where he was upset about a letter he had received regarding the October tumor conference, and he kept saying all I want is an apology. Q. So he didn't say the exact words I'm going to take a leave absence in order to force the administration to give me an apology? Is that what he said? A. He didn't use those exact words. [Lee Opp. Decl., Exh. 47 (Dutt depo, 52:1623)] […] A. I think he was trying to -- he thought he could pressure the medical staff and the administration into giving him an apology. All he wanted was an apology. [Id. at 53:8-10] Irrelevant and immaterial.

1 2

Dutt Depo., 8/20/08, pgs. 52:553: 18

Filed 12/01/2008

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

8. Plaintiff’s email to/from medical executive recruiters in January 2006.

DFJ024222459

a) “You know, I wish I could go back because I enjoyed that job. I mentioned multiple times during my recruitment and elsewhere that that was the last position that I wanted to take, that I saw myself retiring out of that position and not moving. And I was very disappointed when-when things-when people that were in a position to do the right thing didn’t do the right thing.”

Jadwin Depo., 10/21/08, pg. 1087:917

9. Sandi Chester effectively refutes any argument that Jadwin’s letter to Peter Bryan of January 9, 2006 was notice to KMC that Jadwin needed medical leave or that, by implication, Jadwin was absolved of the responsibility to notify HR that he was taking a leave of absence. As Sandi Chester said “I mean, anybody can write a letter.”

Chester Depo., 8/28/08, pgs. 135:12137: 6 Pg. 136:17-18

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Irrelevant and immaterial.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Testimony lacks foundation. Improper legal conclusion as to notice and responsibility to notify HR re leave of absence. Improper opinion testimony. Irrelevant and immaterial.

USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

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Document 283

16

Page 5 of 45

10. Certification of Health Care Provider dated 1/13/06 for Jadwin. Includes the duration of the medical condition (2-3 months) and the expected date to return to work (3/16/06). It gives the date the medical condition commenced as 12/16/05.

DFJ00726

None.

11. Jadwin did not communicate with Human Resources (hereinafter referred to as HR) at all, HR discovered that Jadwin ------ had unilaterally assigned himself to 1 to 2 workdays per week but, per policy, an employee must use vacation, sick time, or leave of absence when not working full-time. It was HR that brought Jadwin into compliance with County policy by putting him on leave of absence.

Chester Depo., 8/28/08, pgs. 75:1976:10

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

12. KMC had to designate Jadwin’s medical leave retroactively because Jadwin was late in giving appropriate requests.

Bryan Depo., 8/14/08, pgs. 195:9196: 14

13. Jadwin’s submission of his healthcare provider’s certification was not timely and was only provided upon prompting from HR.

Chester Depo., 8/28/08, pgs. 113 :23- 114: 12

Misstates the testimony in all respects. Irrelevant and immaterial.

14 15

Filed 12/01/2008

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Irrelevant and immaterial. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Lacks foundation. Speculative as to who put Plaintiff on leave and whether self-imposed.

17 18 19 20 21 22 23 24

14. Certification of Health Care Provider, dated 4/26/06, stating that Jadwin’s medical condition goes back to 10/30/03. The Certification states that Jadwin requires “part-time or less to avoid worsening of his serious medical condition.”

DFJ01150

Irrelevant and immaterial. None.

15. Jadwin’s Request for Leave of Absence (hereinafter referred to as LOA), dated 3/2/06, notes that the LOA started on 12/16/05.

DFJ00746

None.

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Document 283

Filed 12/01/2008

Page 6 of 45

16. KMC’s responsive document to the LOA request, dated 3/2/06, indicating that the leave ends on 3/15/06 and stating “ ... have the right to be reinstated to the same or an equivalent job with the same pay, benefits and terms and conditions of employment.”

DFJ00747748

Irrelevant and immaterial.

17. E-mails dated 3/16/06. One to Peter Bryan from Jadwin telling him that he (Jadwin) will take Bryan’s suggestion to take 2-3 months additional leave; the other to Dr. Kercher from Jadwin telling him that he (Jadwin) is having surgery and will I need 2-3 months of additional leave for the surgery and requesting apologies from Dr. Ragland (President-elect), Dr. Abraham and Dr. Taylor and an investigation into Dr. Roy.

DFJ00752753

None.

18. Notice from Human Resources to Jadwin, dated 4/20/06, that his leave of absence expired on 3/15/06.

DFJ00796

Irrelevant and immaterial.

19. Jadwin’s request for Leave of Absence Extension, dated 4/26/06, has a starting date of 3/15/06 and an ending date of 9/16/06.

DFJ01158

Irrelevant and immaterial to Defendants' argument that Plaintiff failed to give notice of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan as of 4/28/06. Irrelevant to excusing Defendant's liability under any of Plaintiff's counts.

20. Memo from Bryan to Jadwin, dated 4/28/06, notifying him that his leave would be up on 6/16/06 and he either returns fulltime or resigns. Also, it notes that Jadwin was provided a medical leave history, along with the calculations and policies about his medical leave.

DFJ01121

None.

21. Bryan noted that he gave the option to Jadwin whether to go on full-time leave, although full-time leave was preferable to Bryan. Bryan asserts that it was Jadwin’s decision to go on fulltime leave and that Jadwin never communicated with Bryan any contrary intent.

Bryan Depo., 8/14/08, pgs. 250: 15- 251:6, Exhibit 303

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

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Document 283

Filed 12/01/2008

Page 7 of 45

22. Memo from Bryan to Jadwin dated 4/28/06, summarizing a meeting held with Bryan, Karen Barnes, Steve O’Connor, and Jadwin. The meeting was held to “insure that [Jadwin] had all information available concerning his status and what was possible and not possible according to County policies for leaves of absence.” It was not a disciplinary meeting.

Bryan Depo., 8114/08, pgs. 240:9244: 2, Exhibit 303 pg 243 :2225 pg.244:1-2

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

23. A letter to Bryan from Jadwin, dated May 31, 2006, where Jadwin requests more time to make the decision by June 16th of whether to return full-time or resign. Bryan did not have the authority to make an exception to County policy by extending leave beyond the maximum period granted for leave. Jadwin wasn’t being asked to return full-time on June 16th, he just had to give his decision to return full-time by June 16th. He did not do that.

Bryan Depo., 8/14/08, pgs. 248:16249: 9 Exhibit 311

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

24. Letter from Peter Bryan to Jadwin, dated 6/14/06, granting him Personal Necessity Leave of 90 days, pursuant to Rule 1202.2, but only for his employment with KMC, not for his position as pathology department chair.

DFJ01141

None.

25. Bryan artfully explained why the Chair of the Department of Pathology needs to be present full-time. “It’s not just the task orientation of handling a duty. It’s being present within the organization to influence the organization’s policies and practices. Organizations tend to drift without the constancy of leadership, because that is part of what a leader does is monitor the performance to ensure things stay on track, and without that constant dialogue present, you can find yourself getting off track. In the medical arena when patient care is involved, you don’t allow it to get to the point where you don’t have the leadership necessary. So that’s inferred in it being a full-time position.”

Bryan Depo., 8/14/08, pg. 216:3·22.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Improper legal conclusion. Improper opinion.

17 18 19 20 21 22 23 24 25 26 27

Speculation as to what is “inferred” in a position being “full-time”.

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a) Responsibilities and duties of the pathology dept. chair are set out in the KMC Medical Staff Bylaws, sections 6. through 6.4-3.

Document 283

DFJ00046

5 6 7 8 9 10 11

Page 8 of 45

Lacks foundation. Document not authenticated. Document not complete, the exhibit is provided without the contract. Hearsay. Best evidence rule.

3 4

Filed 12/01/2008

26. Mortgage verification of employment for Jadwin, dated 6/22/06, noting that the probability of continued employment for Jadwin was good and he was okay to return to work when well.

DFJ01343

No foundation. Unauthenticated. Hearsay.

27. Letter from Dr. Harris (writing on behalf of Bryan) to Jadwin, dated 6/26/06, stating that he (Jadwin) has been seen in and around KMC and that while he (Jadwin) is on leave, he is not to enter the hospital except for seeking medical attention. He is also not to contact any employee or faculty member of KMC while on leave.

0001424

No foundation. Unauthenticated.

28. In his letter of June 14, 2006, Bryan notifies Jadwin that Jadwin will be removed as chair and tells Jadwin to call him if he has questions. Bryan states that put the burden of challenging the action or asking for reconsideration on Jadwin who never called him about the letter.

Bryan Depo., 8/14/08, pg. 257:9-15

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

29. According to Exhibit 303, Jadwin’s leave and all allowances by the County expired by June 16th. After that date, Bryan had no authority to extend Jadwin’s employment relationship.

Bryan Depo., 8/14/08, pg. 244:6-16

30. By June 2006, Jadwin had fully exhausted his rights and the institutional obligation to grant him medical leave.

Bryan Depo., 8/14/08, pgs. 280:21281: 4

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Bryan Depo., 8/14/08, pg. 258:7-16

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Irrelevant and immaterial.

12 13 14 15 16 17 18 19

Improper conclusion as to burden. Improper opinion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper legal conclusion. Improper opinion.

20 21 22 23 24 25 26 27

31. Adherence to the Medical Staff Bylaws afforded Jadwin the due process that he was entitled to.

Improper legal conclusion. Improper opinion.

Improper legal conclusion. Improper opinion.

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32. Tort Claims Act Complaint, dated 7/3/06, Jadwin admits that he had used up his CFRA leave by June 14th, 2006. Page 1 of the Attachment (page 3 of the entire complaint), Section A, paragraph 1, last sentence reads “As of June 14, 2006, Complainant had taken 12 weeks of CFRA sick leave and approximately 3-4 weeks of County sick leave based on doctor’s certifications which he submitted.”

Document 283

Exhibit 2 to Second Amended Complaint

Filed 12/01/2008

Page 9 of 45

Irrelevant and immaterial. Improper legal conclusion.

33. Memorandum to the Joint 0001476Conference Committee (JCC) from 1565 Bryan, dated 7/10106, recommending 0000073-75 that the Committee approve the demotion of Jadwin from chair of the pathology department to staff pathologist. “This recommendation to rescind Dr. Jadwin’s appointment as Chairman, Department of Pathology, is based solely on his continued nonavailability to provide the leadership necessary for a contributing member of the medical staff leadership group. KMC must have its key personnel available, and Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chairman.” Also, “Dr. Jadwin has made no attempt to contact me concerning my decision to relieve him of his chairman duties nor has he indicated any desire to negotiate a new contract.” JCC meeting minutes confirm that the committee took Bryan’s advice and they did it for the reason that he gave in his memorandum.

Misstates evidence. JCC minutes state only that the JCC voted on Bryan’s recommendation for demotion and approved it. There is no disclosure of the JCC’s reasons for their vote. [Lee Decl., Exh. 17 (JCC Minutes of 7/10/06 at Item 10 on Bates 0009820-9821)].

34. Ray Watson (hereinafter referred to as Watson) testified that he only remembers a discussion on removing Jadwin from the department chair position; he was quite clear (and he was asked three times) that he did not remember any discussion about Jadwin’s “termination.” He affirmatively stated that he knew of no discussions about Jadwin resigning or being denied privileges.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Watson Depo., 8125/08, pgs. 13:1714:14

Misstates testimony.

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Document 283

35. Watson testified that he became aware that Jadwin’s contract was not renewed although he could not give a timeline as to when things happened. He also testified strongly that he does not recall a vote taken on the nonrenewal “although [he] imagine[s] it was,”

Watson Depo., 8/25/08, pgs. 28:630:23

36. Watson testified that the fact that Jadwin was suing KMC was brought up in discussions of whether to renew Jadwin’s contract although he would not say it was a consideration, only that it was discussed. In addition, it became obvious after a few questions that Watson was confused about the sequence of events which can lead to the inference that he does not recall anything specifically or correctly.

Watson Depo., 8/25/08, pgs. 110:12112: 13

Filed 12/01/2008

Page 10 of 45

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony, Watson did not testify “strongly” that he didn’t recall a vote. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony. Watson answered the question affirmatively. He never denied that Plaintiff’s lawsuit was a consideration for the Nonrenewal. In fact, in later testimony, Watson volunteers that Plaintiff’s lawsuit was a “reason” for the Nonrenewal.

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a) Kern County Board of Supervisors did not discuss the non-renewal of Jadwin’s employment agreement or made any decisions regarding the nonrenewal of the employment agreement. The subject never came before the Board of Supervisors.

Document 283

Decl. of Michael Rubio, 11/10/08, ¶2; Decl. of Raymond Watson, 11/10/08, ¶¶3, 4 and 5; Decl. of Mike Maggard, 11/10/08, ¶2; Decl. of Jon McQuiston, 11/10/08, ¶2; Decl. of Don Maben, 11/10/08, ¶2

Filed 12/01/2008

Page 11 of 45

Rubio Decl.: Para. 1: Lacks foundation as to dates of attendance at JCC meetings. Para. 2: Speculation as to Plaintiff’s being “upset”. Improper conclusions and speculation regarding Board of Supervisors’ discussions, decisions re Plaintiff’s agreement. Watson Decl.: Para. 2 & 3: Sham declaration that contradicts sworn deposition testimony after the fact that the JCC did in fact make a decision not to renew Plaintiff’s contract. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 30:1013; 110:12-111:5; 111:15-24; 113:15-114:4)]. A party cannot create an issue of fact by a declaration contradicting his or her own deposition or other sworn testimony. See Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2. The same rule applies to postdeposition affidavits that contradict the affiant’s deposition testimony. Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908; Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169. Para. 4: Improper conclusions and speculation regarding Board of Supervisors’ discussions, decisions. Maggard Decl.: Para. 1: Lacks foundation as to dates of attendance at JCC meetings. Para. 2: Speculation as to Plaintiff’s being “upset”. Improper conclusions and speculation regarding Board of Supervisors’ discussions, decisions re: Plaintiff’s agreement. Maben Decl.: Para. 1: Lacks foundation as to dates of attendance at JCC meetings. Para. 2: Speculation as to Plaintiff’s being “upset”. Improper conclusions and speculation regarding Board of Supervisors’ discussions, decisions re: Plaintiff’s agreement. McQuiston Decl.: Para. 1: Lacks foundation as to dates of attendance at JCC meetings. Para. 2: Speculation as to Plaintiff’s being “upset”. Improper conclusions and speculation regarding Board of Supervisors’ discussions, decisions re: Plaintiff’s agreement.

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Document 283

Hearsay. Best evidence rule.

38. Plaintiffs’ attorney Eugene Lee Bryan agrees that Jadwin was not removed as Depo., chair during his medical leave. 8/14/08, pg. 222:8-13

Irrelevant, immaterial, and is an improper legal conclusion.

10 11 12

14 15

Page 12 of 45

37. Letter from Karen Barnes DFJ01359(hereinafter referred to as Barnes) to 1361 Plaintiffs attorney Eugene Lee, dated 7118/06, in which she mentions (pg. 2) that Jadwin was removed as pathology department chair on 7/10/06 at a regularly scheduled meeting of the Joint Conference Committee, pursuant to Bylaws article IX, section 9.7-4 “removal of a department chair may occur with or without cause ... “

9

13

Filed 12/01/2008

39. Letter to Dr. Harris from Jadwin, DFJ01388dated 9111/06, stating that he (Jadwin) 1389 will be returning to work on 9/18/06 and enclosed was a doctor’s certification that he was able to return to work full-time.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Lacks foundation. Hearsay. A deposition question is not evidence, particularly when its purpose is solely to elicit testimony from a deponent. None.

16 17

40. Letter from David Culberson to Jadwin, dated 9/20/06, explaining the reasons for reduction in pay.

DFJ01398

None.

41. Letter from David Culberson to Jadwin, dated 12/7/06, putting Jadwin on administrative leave with pay and confining him to his home during business hours, pursuant to Kern County Policy and Administrative Procedures Manual section 124.3.

DFJ01482

None.

18 19 20 21 22 23 24 25 26 27

a) Kern County Policy and 0016941 Administrative Procedures Manual, pg. 1:22, Section titled “Administrative Leave with Pay.” “During the administrative leave, the employee shall be ordered to remain at home and available by telephone ... “.

Incomplete document – Bates 0016940 and 16943 were omitted. Bates 0016940 establishes that Defendant County can only put an employee on administrative leave for “good cause”. [Lee Opp. Decl., Exh. 19 (Kern County Policy & Administrative Procedures Manual at Section 139 (Disciplinary Actions) and 139.6 (Administrative Leave with Pay) on Bates 0016940-16941)].

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Document 283

Filed 12/01/2008

Page 13 of 45

42. Letter from Mark Wasser to Eugene Lee, dated 4/30/07, allowing Jadwin to pursue his own activities during the work week and retaining him, at his usual salary, for consulting.

DFJ01701

Irrelevant and immaterial to excusing Defendants' liability under any of Plaintiff's counts, as evidenced by Defendants' failure to cite to this DMF anywhere in their motion brief (Doc. 29).

43. Letter to Mark Wasser from Eugene Lee, dated 5/1/07, noting that on 4/28/07 and in several following emails he was notified that KMC wanted to terminate Jadwin’s contract and would not renew it on 10/4/07.

DFJ017031704

44. Exhibit 644 is an e-mail with an amendment attached to it. The amendment is a contract amendment which Jadwin had to sign before returning to work. Exhibit 581 is also the same contract amendment although Exhibit 581 is signed. There are differences between Exhibit 644 and 581, in subparagraphs “h” and “i”. Jadwin confirmed that he had discussions with his attorney about the amendment; Jadwin does not know if his attorney negotiated any of the terms in it. Jadwin does not know if his attorney made proposals to KMC with suggested changes in the language of the amendment. Jadwin was aware of the changes at the time they occurred but he does not recall how the changes came about. One change that Jadwin recalls talking about is the cut in his salary which he didn’t agree with.

Jadwin Depo., 3/12/08, pgs. 969:1974:2 (Exhibits 644 and 581)

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

45. The last two pages of Exhibit 581 is Exhibit A which is a job description. Jadwin confirms that he read it at the time of signing the amendment. Jadwin looked at the tasks listed and does not believe that any of those tasks require accommodation. Jadwin does not recall asking anyone with the County for an accommodation of any of the tasks listed in Exhibit A.

Jadwin Depo., 3/12/08, 974:3~976:l 2

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Misstates evidence. None.

Lacks foundation. Improper speculation. Plaintiff’s testimony that he spoke with his attorney regarding his disagreement about the pay reduction invades attorney-client privileged communication, a privilege which is never waived, and is inadmissible.

Improper legal conclusion. Vague and ambiguous.

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Document 283

46. Jadwin testified that he wanted his employment contract renewed, but when presented with the fact that his employment contract in place at the time of nonrenewal contained his reduced salary, he denied wanting to renew that contract.

Jadwin Depo., 10/21/08, pg. 1011: 161016: 19

47. Jadwin said that the contract he wanted renewed was his Department Chair contract.

Jadwin Depo., 10/21/08, pgs. 1032:161033: 3; pg. 1043:12-20

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

Filed 12/01/2008

Page 14 of 45

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony. Plaintiff was testifying that he viewed the Paycut Amendment of 7/10/06 as retaliatory. This testimony had nothing to do with nonrenewal. It was also outside the scope of Judge Wanger’s order (Doc. 245:3:5-6), which limited the scope of discovery at that time only to the Plaintiff’s new nonrenewal-related claims. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper speculation. Misstates testimony. Plaintiff was testifying as to his desires and wants were as of 10/7/08, not as of the time his contract expired over a year earlier on 10/4/07. [Lee Opp. Decl., Exh. 6 (Jadwin Depo at 1034:13-1035:9; 1036:7-11; 1041:5-9; 1044:23; 1060:4-7)].

JADWIN’S ALLEGATIONS OF REGULATORY VIOLATIONS 48. Approved Cancer Program Performance Report for KMC, dated 7/14/04, with a rating of “I “meaning KMC’s Cancer program-including number of meetings-is approved for three years with commendation.

0000623630

No foundation. No authentication. Hearsay.

49. Exchange of e-mails between Toni Smith and Jadwin, dated 6115/05, about the PCC issues. In 0000423, Jadwin states that a PCC must not be signed until the time of the infusion, or KMC is not meeting American Association of Blood Banks’ (hereinafter referred to as AABB) accreditation standards.

0000421424

Irrelevant and immaterial to excusing Defendants' liability under any of Plaintiff's counts, as evidenced by Defendants' failure to cite to this DMF anywhere in their motion brief (Doc. 29).

50. Typed notes, dated 1/10106, of interviews done to rebut Jadwin’s claim that the meeting frequency standard set by the American College of Surgeons (hereinafter referred to as ACS) was not being met at KMC.

0000575

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). No foundation. No authentication. Hearsay.

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Document 283

14 15

Page 15 of 45

51. In meeting on 2/22/06, Jadwin alleges that KMC is not meeting the ACS standard for frequency of staff meetings; was rebutted during the meeting that KMC is meeting standard based on 2 surveys and paperwork.

0000578

No foundation. No authentication. Hearsay. Misstates evidence. Improper conclusion as to “rebutted”.

52. In an e-mail to Peter Bryan dated 4/10/06, Jadwin brings up noncompliance with state regulations, Joint Commission for the Accreditation of Hospital Organizations (hereinafter referred to as JCAHO), and AABB on the issues of the PCCs.

DFJ00784

None.

53. Notes of meeting with Peter Bryan, Karen Barnes and Jadwin on 4/13/06. There is no problem with the PCCs because 5 charts were reviewed (and approved) by JCAHO.

DFJ00788

Irrelevant and immaterial to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

12 13

Filed 12/01/2008

54. E-mail to Peter Bryan from Jadwin, dated 4/17/06, claiming that the JCAHO review was too small of a sample so KMC was not in compliance on their handling of the PCCs and there was a need for action.

DFJ00793

55. Gilbert Martinez, the Laboratory manager, recalls Jadwin telling him before Thanksgiving in 2006 to prepare the laboratory for possible inspections (so sometime before 11122/06). He does not recall if Jadwin told him how Jadwin might know about it. He remembers inspectors coming in from the California Dept. of Health Services (hereinafter referred to as DHS) and receiving written inquiries from the CAP. These inspections occurred several months after Jadwin had mentioned it. Jadwin did not “confide” in him or tell him that the inspections were happening because of whistleblowing by Jadwin.

Martinez Depo., 4/16/08, pgs. 111: 12-118: 22

No foundation. No authentication. Hearsay. Misstates the evidence. None.

16 17 18 19 20 21 22 23 24 25

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony regarding “confide” whistleblowing.

26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

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a) CAP conducts routine inspections, unannounced, on a known periodic basis.

Martinez Depo., 4/16/08, pgs. 118:23120: 19

3 4 5 6 7

Filed 12/01/2008

Page 16 of 45

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony.

56. Jadwin first reported concerns to JCAHO, CAP, and DHS in November 28, 2006 (more than five years after noticing alleged violations). a) Actual complaint filed with JCAHO by Jadwin.

No supporting evidence submitted.

DFJ025402541

None.

8 9

b) E-mail from JCAHO to Jadwin, DFJ01454 dated 11/29/06, acknowledging receipt of complaint about KMC.

None.

c) Letter from DHS to Jadwin, dated 12/1/06, acknowledging receipt of complaint.

None.

10 11

DFJ01459

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

57. E-mail to JCAHO from Jadwin, DFJ02538dated 12/8/06, wanting to talk with the 2539 JCAHO investigator and requesting quickness on the investigation because KMC might be covering up noncompliance evidence. He brings up the issue of skull flaps being stored on-site.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

58. Letter to KMC from Jadwin dated 12/13/06 notifying hospital administration that he has notified governmental and enforcement agencies of alleged violations.

00014551458

None.

59. Letter from Dr. Dutt to Gerald Hoeltge of the CAP, dated 1/11/07, telling him that Jadwin had never informed him (Dutt) that some tissue handling and storage was occurring but the situation has been taken care of.

0020278

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

60. Letter to Dr. Dutt from CAP, dated 0020279 3/22/07, informing him that the KMC laboratory continues to be in compliance with the CAP Standards for Laboratory Accreditation.

Misstates evidence.

No foundation. No authentication. Hearsay. Speculation. Improper conclusion. Improper opinion. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). No foundation. No authentication. Hearsay.

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61. Dr. Dutt believed that Jadwin, after returning from leave, might be intentionally issuing wrong opinions to prove he was a whistleblower.

Dutt Depo., 8/20/08, pg. 296: 10- 19

3

5

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

No foundation. Hearsay. Improper speculation. Improper conclusion.

6

8

Page 17 of 45

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

4

7

Filed 12/01/2008

DEPRESSION DISABILITY, REASONABLE ACCOMMODATION, INTERACTIVE PROCESS 62. Jadwin described his disability as severe depression, manifested by a lack of ability to concentrate; loss DFJ0y in his work; extreme anxiety and difficulty sleeping. Jadwin testified that he told Dr. Kolb, during a meeting he had with him in 2003, that he was depressed. Jadwin thought this meeting was a one-on-one weekly meeting that each department chair had with Dr. Kolb. Jadwin said that Dr. Kolb must have noticed that he was depressed because he would often ask him if he was alright.

Jadwin Depo., 1/9/08, pgs. 414:24418: 12

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

63. Jadwin told Dr. Kolb that he suffered from depression when he notified him of the weekly half-day medical leave day off to see his therapist.

Jadwin Depo., 1/9108, pgs. 491:1493:17

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

64. Jadwin asked Dr. Kolb for accommodations for his disability by requesting time off for his therapist visits. Dr. Kolb granted that accommodation.

Jadwin Depo., 1/9108, pgs. 506: 16507: 1

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

65. Jadwin had an episode of depression in the 1990s before coming to work at KMC. Jadwin affirmed his earlier testimony that his recent depression started in 2002 or 2003. Jadwin said that he was taking weekly half-day leaves starting in or about 2003 and he told Dr. Kolb it was because of his problems with radiology and others.

Jadwin Depo., 1/9/08, pgs. 452:4455:19 Pg. 455:8-13

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper medical conclusion re depression. Misstates testimony regarding reasons for feeling depressed.

USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

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66. Bryan does not recall Jadwin mentioning to him about depression, sleeplessness, etc. nor did Bryan notice behavior that he would call mental illness.

Bryan Depo., 8/14/08, pgs. 111: 12-113: 2 and 128:16129:3

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

67. Jadwin only discussed his disability with Dr. Kolb. When asked whether he had ever told Peter Bryan, Jadwin said that subsequently during one-on-one meetings with Bryan he had mentioned being depressed by lack of action on the concerns Jadwin was raising. When pressed on whether he had ever actually told Peter Bryan he was disabled, Jadwin said that in late 2005 or early 2006, he told Bryan that sometimes he was so depressed he couldn’t work at KMC anymore until it fixed some of his concerns. Jadwin said that he also told Dr. Yoo, head of psychiatry, that he was depressed from working at the hospital. Jadwin does not recall talking to Dr. Dutt about this issue. Jadwin could not recall any other people at KMC that he talked to about his disability. In fact, Jadwin would not use the term “disabled” just that he could not work there.

Jadwin Depo., 3/12/08, pgs. 976: 13983: 2 lines 977:58 and lines 977:24978:8 and lines 981: 17-982: 1 and lines 982: 18-24 lines 978: 15-979:1 lines 979:24980:8 lines 982:9-24

Irrelevant and immaterial in that employer does not need to know an employee's diagnosis, only an employee's limitations, to have notice of an employee's disability.

68. When asked what considerations there were in renewing a contract with KMC, Jadwin replied “All of the working environment situations. The patient quality issues, the administration, what-what type of administrative operation is there. The emphasis on quality, interest in quality. Interest in patient safety. The collaborative working environment. Are the other physicians going to be responsible in working for the betterment of patient care, or are they just going to be working for their own self-interest.”

Jadwin Depo., 10/21/08, pgs. 1055:131056: 15

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Filed 12/01/2008

Page 18 of 45

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony.

Improper speculation. Misstates testimony. Irrelevant an immaterial. Plaintiff was testifying as to his desires and wants were as of 10/7/08, not as of the time his contract expired over a year earlier on 10/4/07. [Lee Opp. Decl., Exh. 6 (Jadwin Depo at 1034:131035:9; 1036:7-11; 1041:5-9; 1044:2-3; 1060:4-7)].

25 26 27

JADWIN’S ERRORS Failure to Produce Timely or Correct Diagnoses

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Filed 12/01/2008

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69. Dr. Ragland brings up the issue that a stack of FNA reports that Jadwin had given him had issue dates after the date of a double read, in each case, was done by UCLA. This raises the possibility that Jadwin waited to enter a diagnosis until the double read had come back from UCLA so that he could be in 100% agreement with UCLA.

Ragland Depo., 8/22/08, pgs. 171 :5172:5 and 328:7-329: 14

Irrelevant and immaterial.

70. Letter from Dr. Ang to Dr. Perez, Peter Bryan, Dr. Kolb, and Dr. Munoz, dated 2/20102, containing formal complaints of misconduct against Jadwin. Complaint #3 states that Jadwin failed to pass the quarterly proficiency tests on cervical pap smears so those tests are sent out. It states that this was an unnecessary cost and delay because the other three pathologists in the department could examine the pap smears because they have maintained their proficiency.

0000690691, 0000736

Relevance.

a) Document asserting Jadwin’s failing test scores and the fact that the Department of Pathology has not been sued for medical malpractice in 23 years.

0000737

Irrelevant and immaterial to excusing Defendants' liability under any of Plaintiff's counts. No foundation. No authentication. Hearsay. Misstates the evidence.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper speculation. Improper opinion. Improper conclusion. No foundation. Misstates testimony.

No foundation. No authentication. Hearsay.

16 17 18 19 20 21 22 23 24 25 26 27

b) Jadwin’s actual (failing) test for cervical pap smears. This test is conducted by the College of American Pathologists (CAP). Of interest, on Case #3 Jadwin marked “unsatisfactory for evaluation” when the accurate diagnosis was “squamous cell carcinoma.” 71. Report to Maureen Martin from Jadwin, dated 11/20/02, on the results of the evaluations of the pathologists (Jadwin and Lang) by resident physicians and staff physicians in surgery. On a three-point scale, where 2 means satisfactory and 3 means needs improvement, Jadwin scored low on timeliness (lower than Lang), IOC quality, completeness, and clarity of diagnosis. Jadwin blamed unhappiness of a Dr. Prunes for his low scores.

Irrelevant. No foundation. No authentication. Hearsay. Misstates the evidence.

00010591072

Irrelevant. No foundation. No authentication. Hearsay. Misstates the evidence. Improper conclusion.

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72. Twenty-nine (29) medical reports from 2004 and 2005 with all of the following in common: 1) all are FNA reports; 2) all were processed in-house and then sent to outside labs for independent diagnosis; and 3) the turn-around time for the final diagnosis ranged from three weeks to five or six months.

Document 283

00011631310

Filed 12/01/2008

Page 20 of 45

Irrelevant to excusing Defendants' liability for any of Plaintiff's counts. Misstates evidence. No foundation.

73. Letter from Dr. Roy to Jadwin, DFJ00363 dated 4/15/05, complaining that samples from 2 cases still had not been analyzed and diagnosed and were over one week late.

Hearsay.

74. Letter to Dr. Roy from Jadwin, dated 4/20/05, in response to his complaint about late diagnoses. On page 3 Jadwin writes “Pathology diagnoses are consensus based, with few gold standards to affirm accuracy. Consultants offer opinions, not accurate diagnoses. There is no universally agreed upon definition for what constitutes an ‘accurate’ diagnosis.”

DFJ00364366

Relevance.

75. Notes by Dr. Harris, dated 6/8105, of a meeting between himself and Dr. Roy in which Dr. Roy again raises his concerns with the pathology department.

002706627068

Hearsay.

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

76. Notes by Dr. Harris, dated 7/1/05, 0027069of a meeting between himself and Dr. 27070 Roy. Dr. Roy had specific examples of his complaints about the pathology department including three missed diagnoses and an example-by name and report number--of a pathology report changed after the fact by Jadwin.

Relevance.

77. Letter from Dr. Roy to Jadwin, dated 7/15/05, responding to Jadwin’s letter to him dated 6/5/05 and stating that he (Dr. Roy) has raised pathology department mistakes, delays and discrepancies with Jadwin many times before.

DFJ00439, DFJ00437

Relevance.

78. Phone message from Dr. Roy, dated 11/18/05, identifying a patient error by Jadwin.

0000506

No foundation. No authentication. Hearsay. Misstates the evidence.

Hearsay.

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

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Filed 12/01/2008

79. Letter from Dr. Roy to Dr. Harris, dated 2/22/06, identifying 19 cases (with medical records backup) where KMC pathology department was wrong in their diagnosis, or very late in getting a diagnosis, or changing an initial wrong diagnosis.

0000434476

a) Pathology Quality Management Policy, September 2005, “Correction of significant error must be made through a corrected report.”

0018516

c) Two letters from Dr. Felix at USC to Dr. Roy, dated 3115/06 and 3/16/06, with diagnoses of samples that Dr. Roy sent to him. Handwritten notes on bottom of letters describe discrepancy with KMC pathology diagnosis and that pathology changed its diagnosis in one instance.

0000432433

80. After returning from leave, Jadwin had to be told to slow down on regular case work because he was going too fast and making errors.

Dutt Depo., 8/20/08, pg. 285 :6-23

Relevance.

81. E-mail from Reyes to Dr. Harris and Tony Smith, dated 4/17/06, reporting that Jadwin was making copies of patient files which is a Title 22 violation.

0000398

Relevance.

82. Minutes of the meeting of the pathology/histology department on 10/17/06. It was noted that Dr. Shertukde was concerned that blades were not being removed once grossing was done. She and Dr. Dutt remove and discard the blades immediately.

0000899

83. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, reminding him of a rush case that Jadwin failed to process promptly and counseling Jadwin to remember it when criticizing others.

DFJ01449 DFJ014461447

Page 21 of 45

Relevance. No foundation. Hearsay. Improper conclusion. Improper opinion. Speculation.

Relevance. No foundation. No authentication. Incomplete document. Hearsay. Misstates the evidence. Relevance. No foundation. No authentication. Hearsay. Misstates the evidence. Improper conclusion. Speculation. Improper opinion.

14

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

15 16 17 18 19 20 21 22 23 24 25 26

Other Mistakes

No foundation. No authentication. Hearsay. Misstates the evidence. Relevance. Hearsay. Improper speculation. No foundation.

Relevance. Hearsay. Speculation. Improper conclusion. Improper opinion. No foundation.

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Document 283

84. E-mail from Tracy Lindsey to Ramona Case, dated 11/27/06, stating that Jadwin had labeled some (9) placentas wrong and she gave the incorrect labels alongside the correct labels.

0000823

85. E-mail from Dr. Dutt to Yolanda Figueroa, dated 12/7/06, acknowledging her report that Jadwin had left two long blades and a scalpel out after he was finished.

0000862

86. Report from Dr. Dutt to Peer Review Committee, dated 12/14/06, describing with documentation five mistakes by Jadwin: 1) missed diagnosis and failure or refusal to seek outside consultation (with backup letter from Dr. McBride); 2) misdiagnosis of prostate carcinoma and of prostatic biopsies; 3) missed diagnosis of thyroid microcarcinoma; 4) performance of sternal bone marrow examination; and 5) assignment of procedures to physician without privileges.

0000882895

Filed 12/01/2008

Page 22 of 45

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

Relevance. Hearsay. Speculation. Improper conclusion. Improper opinion. No foundation. Relevance. Hearsay. Speculation. Improper conclusion. Improper opinion. No foundation.

15 16 17 18 19 20 21 22 23 24 25 26

JADWIN’S INABILITY TO GET ALONG WITH OR COMMUNICATE WELL WITH OTHERS Policy 87. Policy Statement of the Disruptive Behavior, Discrimination & Harassment Policy “It is the policy of Kern Medical Center that all associates are expected to conduct themselves at all times while on hospital premises in a courteous, professional, respectful, collegial, and cooperative manner. This applies to interactions and communications with or relating to physicians, nursing and technical personnel, other caregivers, other hospital personnel, ... “ [emphasis added]

001068510688

Relevance.

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88. Section V Item A of the Kern Medical Center Procedure on Disruptive Behavior, Discrimination and Harassment Policy “Examples of prohibited conduct include but are not limited to the following ...

001068610687

Relevance.

a) 6. Use of racial, ethnic, epithetic or derogatory comments...

0010686

Relevance.

b) 8. Use of medical record entries to criticize KMC associates, policies or equipment, other practitioners, or others;

0010686

Relevance.

c) 14. Persisting to criticize, or to discuss performance or quality concerns with, particular KMC associates or others after being asked to direct such comments exclusively through other channels; ... “

0010687

Relevance.

89. Jadwin was dealt with pursuant to the Disruptive Physician Policy.

Harris Depo., 8/13/08, pgs. 330:21332:3

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

8 9 10 11 12 13 14

Improper speculation. Misstates testimony. [Lee Opp. Decl., Exh. 24 (Harris Depo at 331:21-332:3)].

15 16 17 18 19 20 21 22 23 24 25 26 27 28

Pulling Dr. Lau’s Tie 90. E-mail to Michael Ewald from Jadwin, dated 10/9/03, telling Ewald how to conduct the investigation into the “tiepulling” incident, who to talk to, and what questions to ask.

0000260 (Exhibit 560)

Relevance.

91. Confidential file of investigation of Jadwin pulling Dr. Lau by his tie, dated 10/21/03.

0000031-70

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

a) Portion of Jadwin’s interview blaming Dr. Lau for the incident, alleging a prior history of Dr. Lau being afraid of him because Jadwin (allegedly) points out Dr. Lau’s many mistakes.

0000061-63

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

b) During Jadwin’s interview, conducted on 10/17/03, Jadwin accepts that he pulled the tie, says he cannot really remember.

0000063

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

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c) The investigator finds, by a preponderance of the evidence, that (Item #2) Jadwin violated the Workplace Violence Policy of the County of Kern and potentially endangered the quality or efficiency of patient care (because both Jadwin and Lau testified that Lau told Jadwin that he could not accompany him because he had patient work to do).

0000034

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence, investigator did NOT apply a “preponderance of evidence” standard.

92. Letter from Dr. Kolb to Jadwin, dated 11/26/03, reprimanding him for pulling Dr. Lau by his tie.

DFJ00246

Relevance.

93. Letter to Dr. Lau from Jadwin, dated 10119/05, apologizing for past wrongs.

DFJ00590

Relevance.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript

10 11

Dispute with Radiology

12

94. Dr. Ragland implied that Jadwin was wrong in the dispute with the radiology department because the procedurist (the radiologist) should chose the equipment he uses (gauge of needle is an example) because that is who is performing the task.

Ragland Depo., 8/22/08, pgs. 155:2156:13

95. Dr. Abraham, while discussing the FNA Consulting Report, mentioned that the radiologists were upset with Jadwin because he was accusing them of too many inadequate specimens (“unsatisfactory for evaluation”) when there were relatively few complaints of that before Jadwin arrived.

Abraham Depo., 8/18/08, pgs. 59:660:2

a) Jadwin’s actual (failing) test for cervical pap smears. This test is conducted by the College of American Pathologists (CAP). Of interest, on Case #3 Jadwin marked “unsatisfactory for evaluation” when the accurate diagnosis was “squamous cell carcinoma.”

0000737

Relevance. No foundation. No authentication. Hearsay. Misstates the evidence.

96. Dr. Abraham talked about the lack of trust between the other doctors and Jadwin, which the FNA Consulting Project report addresses as communication problems.

Abraham Depo., 8/18/08, pgs. 62: 1664:3

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

No foundation. Improper opinion. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper speculation. Improper opinion. Improper conclusion.

No foundation. Improper speculation. Improper opinion. Improper conclusion. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF ∆’S MOTION FOR SUMMARY JUDGMENT

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97. Kern Medical Center FNA Consulting Project report by Dr. David Lieu, M.D., M.B.A., dated 5/3/04.

DFJ00251270

None.

a) Consultant’s core issue is the lack of communication and complete distrust between radiology and pathology with negative ramifications for the clinicians and administration.

DFJ00255

Misstates evidence.

b) Consultant agreed with radiologists that long clinical history on the FNA reports was unnecessary.

DFJ00257

Misstates evidence.

c) “ ... Dr. Jadwin and radiologists do not communicate at this level. This suggests that a breakdown in communication is the fundamental problem. This bridge was burned down long ago.”

DF100260

Relevance.

d) “Finally, both radiology and pathology will work together to find the best needle for deep FNAs.”

DFJ00269

Relevance.

98. E-mail to Drs. Kercher and Kolb from Jadwin, dated 9/3/04, stating “You cannot dictate the size of the needle by policy” and calling Dr. Lieu “unjustifiably pompous,”

DFJ00289290

Relevance.

99. E-mail to Peter Bryan from Jadwin, dated 2/2/05, listing his suggestions for improvement on the FNA issue. Jadwin also states that the radiology department was “substantially at fault” for the conflict between the departments. He requested a formal apology from the radiology department to himself and the pathology department. He also requested (in bold lettering) a public announcement at the next Medical Executive Committee (hereinafter referred to as MEC) meeting that there are no quality issues involving the pathology department and Drs. Amin, Abraham, Munoz and Naderi should be standing at the podium during the announcement.

DFJ00319320

None.

Page 25 of 45

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100. Exchange of e-mails between Dr. Ragland and Jadwin, dated 2/25/05, in which Jadwin complains about some comments made by the radiologists at the February QM meeting and informing Dr. Ragland to be prepared for Jadwin to request him to call for supporting documentation from radiology or announce that the previous comments were unsupported. Dr. Ragland shot back his displeasure at the continuing conflict between radiology and pathology, and stated that his committee will not become a battleground for this conflict.

Document 283

Filed 12/01/2008

DFJ00353354

None.

DFJ00241242

Relevance.

Page 26 of 45

Length of Presentations/October 2005 Oncology Conference 101. Exchange of e-mails between Dr. Ragland and Jadwin, dated 11/19 & 11/20/03, about the last Quality Management meeting. Dr. Ragland contradicted Jadwin’s statement that the pathology presentation during the meeting was 20 minutes; Dr. Ragland said it went on much longer than 20 minutes and proceeded to give Jadwin advice on which information was most important to present and how it could be presented succinctly. 102. Memo from Dr. Ragland to Jadwin, dated 1/21/04, that presentations must be concise and that the last Blood Usage Report-52 slideswill not fit in the allotted time.

None.

103. Memo from Dr. McBride to Jadwin, dated 5/9/05, requesting that the time required for the pathology presentation at the oncology conference be kept to a minimum.

DFJ00381

None.

104. Instructions for the Cancer Conference presenters 1) the presentation is to contain less than 10 slides, 2) length not to exceed 20 minutes for comprehensive background and overview of testing, and 3) all physicians involved in the case being presented must be notified beforehand.

Patel Depo., 12/6/07, Exhibit 25

None.

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105. Pathology Dept.’s oncology conference presentation----67 slidesby Jadwin, reviewing gynecology cases and alleged errors in diagnosis by University of Southern California (hereinafter referred to as USC).

DFJ00508574

None.

106. Memo from the Cancer Committee (Drs. Patel, Johnson, and McBride) to Jadwin, dated 10/12/05, insisting that his presentation take no more than 5 minutes per patient case.

DFJ00578

Relevance.

Improper speculation. Improper opinion.

108. Dr. Royce Johnson also voiced a complaint.

Harris Depo., 8/13/08, pgs. 126:8127: 19

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

109. Oncology Conference Performance Evaluations of 10/12/05 where criticisms of Jadwin’s presentation are written in the comments section on the following Bates-stamped pages: 0000516,522,526,536, and 548.

Exhibit 190

Hearsay. No foundation. None.

110. Dr. Ragland was not present at the October Oncology Conference so his testimony was limited to the comments he heard Jadwin make regarding the conference (which is an admission against interest). Dr. Ragland said that Jadwin’s excuse for monopolizing the oncology conference was that “the only important information on that case was his.”

Ragland Depo., 8/22/08, pgs. 106: 18-109:14 and 156:1425

16

18 19 20 21 22 23 24 25 26

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107. Anonymous (redacted) memo DFJ00580 (author-Dr. Taylor) of complaint about Jadwin’s oncology presentation, dated 10/12/05. Some quotes: “ ... inappropriate to bring political/personal battles to an educational forum filled with residents and students,” and “ ... inappropriate to ‘bash’ reputable institutions like USC and Stanford,” and “ ...made [Jadwin] look like a conceited, pompous buffoon.”

15

17

Filed 12/01/2008

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony. No foundation. Vague as to time.

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111. Dr. Abraham testified that Jadwin went on much longer than a normal pathology presentation and she was embarrassed for him and by some of the things that he said. Her overall feeling was one of discomfort. She definitely felt that his criticisms of outside consultants were inappropriate and further evidence of his arrogance because the issue was not one of who was- right-and-who-was-wrong but of the actual sample and how it could be read. Jadwin’s position that it is a patient care issue presumes that Jadwin is right and Dr. Roy and the outside pathologist are wrong.

Abraham Depo., 8/18/08, pgs. 14: 1021: 17 and 131:5133:23 and 135:24138:22

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

112. Dr. Dutt believed that Jadwin retaliated against Dr. Roy by verbally attacking him, angrily, at the October oncology conference.

Dutt Depo., 8/20/08, pgs.292:25293:20

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

113. Letter from Drs. Kercher, Ragland, Abraham and Harris to Jadwin, dated 10/17/05, about Jadwin’s October oncology presentation. The criticisms of the presentation were 1) it exceeded the time allotted to it, 2) Jadwin failed to follow the leader of the conference on brevity, and 3) Jadwin used a public forum for a personal agenda and/or for making a political statement.

DFJ00588

Improper speculation. Improper opinion. No foundation. No foundation. Improper opinion. Improper conclusion.

114. E-mail from Dr. Ragland to Dr. Harris, dated 10118/05, describing Jadwin’s attitude during the meeting on 10/17/05. When handed the evaluations of his presentation, he would not look at them. The e-mail states that Jadwin has a “lack of communication skills” and fails to “extend basic courtesy to his colleagues.”

0000094

Improper speculation. Improper opinion.

115. Jadwin’s evaluation of the 11/9/05 oncology conference (what he filled out). He complained that it ran to 8:38 a.m. and he noted he would discuss the overrun with Dr. McBride.

DFJ00689

Misstates evidence.

12 13

Filed 12/01/2008

Misstates testimony. Improper opinion. Improper conclusion. Improper speculation.

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1 2 3 4 5 6 7 8 9 10

116. Memorandum to Supervisor Michael Rubio, District V, from Peter Bryan, dated 1/17/06, giving him background on the problems arising from the October oncology conference. Bryan tells of a meeting he had with Jadwin about a week after the conference in which Jadwin was extremely angry and making loud, derogatory comments about various members of the medical staff. He said he became concerned about Jadwin’s emotional health. He also said that Jadwin has never been able to state a resolution to the impasse. Bryan also says that he will meet again with Jadwin and inform him of some expectations for future conduct, or he will consider removing him as the chairman of the pathology department.

Document 283

Filed 12/01/2008

00015661567

None.

Page 29 of 45

11 12

PCCs

13

117. PCC issue was a difference in professional judgment, the process by the nursing staff was working for them, and Jadwin failed to work within the institution and committee structure. Also, Bryan inferred that Jadwin had accused Toni Smith of ethical lapses which is an example of “a pattern of inability to establish an effective means of dialogue.”

Bryan Depo., 8/14/08, pgs. 205:6206: 25 (Exhibit 291)

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

118. E-mail to Toni Smith, R.N. from Jadwin, dated 5/20/05, inquiring after audits of the nursing department of which only one was received and arguing that PCCs should be sent to the blood bank when complete.

DFJ00408409

None.

119. E-mail to Toni Smith from Jadwin, dated 5/20/05, recounting Jadwin’s telephone conversation with Holly Rapp, AABB Accreditation Director.

DFJ02499

None.

14 15 16 17 18 19 20 21 22 23 24

Hearsay. Improper opinion. Improper conclusion. Improper speculation.

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120. Exchange of e-mails between 0000421Toni Smith and Jadwin, dated between 424 6/15/05 and 6/28/05, about the PCC issues. In 0000423, Jadwin states that a PCC must not be signed until the time of the infusion, or KMC is not meeting AABB accreditation standards.

None.

121. Typed notes, dated 1/10/06, of 0000572 interviews with various people and institutions re: sending the Product Chart Copies (PCCs) back to the blood bank (pathology). The author unknown- interviewed Michelle Burris who said there is no reason to return PCCs to pathology. The author interviewed Ann Schadler, UCLA Blood Bank Director, who said their PCCs are in the patient’s record only, not the blood bank. The author interviewed Julia, UCSD Blood Bank, who said there was no reason to return the form to the blood bank. The author also interviewed Dr. Wu and Jay, supervisor of Mercy Lab and Blood Bank, who said that the PCC goes in the patient’s record and there is no reason to return the PCC to the blood bank.

No foundation. No authentication. Hearsay. Misstates the evidence.

122. E-mail to Peter Bryan from Jadwin, dated 4/10/06, about several issues but he brings up noncompliance with state regulations, JCAHO, and AABB on the issues of the PCCs.

DFJ00784

None.

123. Notes of meeting dated 4/14/06 with Peter Bryan, Karen Barnes and Jadwin on 4/13/06. There is no problem with the PCCs because 5 charts were reviewed (and approved) by JCAHO.

DFJ00788

No foundation. No authentication. Hearsay. Misstates the evidence.

124. E-mail to Peter Bryan from Jadwin, dated 4/17/06, claiming that the JCAHO review was too small of a sample and KMC was in noncompliance on their handling of the PCCs and there was a need for action.

DFJ00793

None.

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a) Bryan criticizes Jadwin’s 57 memos to Toni Smith, R.N. as a “way of flooding the system and seeing what sticks and what doesn’t.”

Bryan Depo., 8/14/08, pg. 226: 10-16

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

125. Memo to Peter Bryan from Toni Smith, dated 4/17/06, responding to Jadwin’s e-mail to Peter Bryan of 4/17/06, disagreeing with Jadwin’s characterization of the PCC situation and stating that Jadwin’s proposals on this issue were strategies that have previously been rejected by KMC.

0000401403

No foundation. Improper conclusion. Improper opinion. Improper speculation.

126. Harris had complaints about Jadwin’s handling of the PCC issueJadwin was demanding, inflexible, unreasonable in wanting the originals, impatient.

Harris Depo., 8/13/08, pgs. 268:823

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

11 12

Filed 12/01/2008

127. Toni Smith, R.N. explained that the reason that some PCCs looked like they were not complete is that the PCC form was actually in duplicate and the nurses were not consistent about writing on only one copy and throwing the blank copy away.

Smith Depo., 8/19/08, pgs. 59:460: 13

128. Toni Smith said that Jadwin was never interested or willing to listen to her ideas. When asked what Jadwin’s physical demeanor was like in these conversations in which he was allegedly uncooperative, she said “He was obviously frustrated, obviously not going to change his mind, obviously not willing to listen to anything. I presented cases from other hospitals, some of the lab directors that I hold in high esteem. [He] had no interest in any of that.”

Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22

129. Jadwin’s idea to have the PCCs stored in his department may violate California law, Title 22, by fragmenting the medical record. Jadwin’s idea was opposed by Toni Smith, R.N., the medical records department, and the medical records committee which ultimately determines what the contents of a medical record will be.

Smith Depo., 8/19/08, pg. 71 :2-21

No foundation. Improper opinion. Improper speculation. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper speculation. No foundation.

15 16 17 18 19 20 21

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper speculation. Best evidence rule.

22 23 24 25 26 27

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper speculation. Improper conclusion. Hearsay.

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130. Toni Smith, R.N. offered a succinct description of her conversations with Jadwin on the issue of PCCs. The conversations were not professional conversations-”It just was a dead-end conversation. I mean, he had his mind made up that those things-he had never seen an organization where they hadn’t been stored in the lab. I had indicated-I indicated to him that I had never seen an organization where they were stored in the lab. And I questioned him as to how he was going to be able to locate that if we needed it for patient care purposes. I think he said he was going to store them in binders or in notebooks or boxes or something. You know, it was irrelevant as far as I was concerned. I felt that it was very important to have that information-one, we needed to know that the patient had-had received the blood. We needed the vital sign information during the blood transfusion part, which would leave a huge gaping hole in patient information if that was stored somewhere in the lab.”

Smith Depo., 8/19/08,pgs. 72:19-73:17

131. Toni Smith considered Jadwin’s conduct at the MEC meeting as uncooperative, refusal to consider other points of view or suggestions, etc.

Smith Depo., 8119/08, pg. 77:9-20

132. Jadwin’s charges of being out of compliance with regulatory agencies were unfounded, and regulatory agencies found no jeopardy of KMC’s level of compliance.

Smith Depo., 8/19108, pgs. 84: 1185:7

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Page 32 of 45

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper speculation. Improper conclusion. Hearsay.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Relevance. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Misstates testimony. Speculation. No foundation. Improper conclusion.

22 23

Document 283

In General Treatment of Other Staff

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1 2 3 4 5 6 7

10 11

14 15

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

134. Dr. Abraham testified that many or most physicians reported difficulties in getting along with Jadwin.

Abraham Depo., 8118/08, pgs. 185:7187:9

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

135. Jadwin’s communication style was, to some people, offensive and abrasive, and he had a hard time accepting differing opinions from others.

Bryan Depo., 8114/08, pgs. 90:492:2

136. “Compromise” was not in Jadwin’s vocabulary. It is not enough to be right; a department chair must exercise judgment on how to deal with others.

Bryan Depo., 8114/08, pgs. 100: 12102: 1

16 17 18

137. Jadwin said Dr. Ragland was not qualified to be a staff officer, and he called Dr. Harris an idiot on several occasions.

19 20 21 22 23

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Abraham Depo., 8118/08, pgs. 49: 1652:9 and 75 :22-76: 19

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133. Dr. Abraham gradually had fewer and fewer interactions with Jadwin because his attitude was pompous and arrogant. Since the conversations with Jadwin were not cordial, it negatively affected patient care. She didn’t discuss Jadwin’s attitude with other doctors because she thought his attitude was evident to everyone.

8 9

Document 283

Bryan Depo., 8114/08, pgs. 107:16109: 11

No foundation. Improper speculation. Improper opinion. Improper conclusion.

No foundation. Improper speculation. Improper opinion. Hearsay. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper speculation. Improper opinion. Hearsay. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper speculation. Improper opinion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Relevance.

138. E-mail to Bryan from Jadwin asking Bryan what he (Bryan) has done on the cytotech issue. Bryan said that he was not the appropriate person to resolve this. Jadwin should be directing this to the chairman; Bryan only gets involved if approval is necessary.

Bryan Depo., 8114/08, pgs. 171: 17173: 11 (Exhibit 271)

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

139. Bryan recalls private conversations with Jadwin where Jadwin challenged Toni Smith’s competency as chief nursing officer.

Bryan Depo., 8114/08, pg. 230: 10-15

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

No foundation. Improper conclusion.

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140. Jadwin was so obsessed with personnel actions or inactions that he was distracted in his duties. “ ... his behavior threatened a healthy, productive work environment at the hospital.”

Harris Depo., 8113/08, pgs. 171: 16174: 8 pg. 173:9-10

141. In most cases, doctors know how to calm each other down and act professionally and collegially. Jadwin was “unusual.” Jadwin was unable to interact collegially and professionally to create a healthy, collaborative working environment.

Harris Depo., 8/13/08,pgs. 212:16218: 11 pg.215:1821

142. Jadwin denied referring to Dr. Epstein as cavalier. Jadwin said that on another matter, at another time, he said that Dr. Epstein’s diagnoses were a little cavalier.

Jadwin Depo., 3/12/08,901 :12-903: 1

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

143. Dr. Ragland testified that Jadwin acted inappropriately in several instances.

Ragland Depo., 8/22/08, pg. 12:8-23

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

pg.16:1516.

No foundation. Improper speculation. Improper opinion. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

pgs. 59:2160: 17 and 86:5-25

No foundation. Improper speculation. Improper opinion. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper speculation. Improper opinion. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper speculation. Improper opinion. Improper conclusion.

11 12 13 14 15 16

a) The first incident was when Jadwin, in a meeting, said Dr. Ragland was incompetent and shouldn’t be the medical staff president.

17 18 19 20 21 22 23 24

b) The second incident was Jadwin taking over the blood usage committee and not letting any other physicians on it. Jadwin sent Dr. Ragland an e-mail stating that he thought having other physicians on the committee was a waste of time because “they will all rubber stamp it.” Dr. Ragland interpreted this to mean that Jadwin did not think that anyone else at KMC had the competence or experience to sit on the committee.

Evidence was spoliated in violation of preservation request. No foundation. Improper speculation. Improper opinion. Improper conclusion.

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c) The third incident was Jadwin’s fighting with the radiologists and calling them incompetent. According to Dr. Ragland, Jadwin was wrong because the procedurist (the radiologist) should chose the equipment he uses (gauge of needle is an example) as that is who is performing the task.

pg. 94:16 95:15 and 155:2156:13

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

d) The fourth incident was Jadwin hijacking the presentation at the October 2005 oncology conference.

pgs. 106: 18-109: 14 and 156:1425

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

144. Dr. Ragland observed an incident involving Dr. Shertukde wherein Jadwin intimidated her into giving the answer he wanted and then he dismissed her from the room.

Ragland Depo., 8/22/08, pg. 110:7-17

Hearsay. No foundation. Improper speculation. Improper opinion. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

145. Watson describes how Jadwin’s disruptive misconduct was discussed at several JCC meetings.

Watson Depo., 8/25/08, pg. 13:3-16

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Watson Depo., 8/25/08, pg. 32:6-1 0

Hearsay. No foundation. Improper speculation. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Hearsay. No foundation. Improper speculation. Improper opinion. Improper conclusion.

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12 13 14 15 16 17 18 19

146. Watson testified to his impression of Jadwin’s involvement with KMC management regarding whether to remove him as chair, etc. He felt that Peter Bryan had made a lot of effort to engage Jadwin but that Jadwin was unresponsive.

Hearsay. No foundation. Improper speculation. Improper conclusion.

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147. Letter to Dr. Ko1b from Jadwin, dated 11/22/03, complaining about the situation at KMC. Jadwin asserted the following: 1) offense at Dr. Kolb’s counseling of Jadwin that his leadership style needs to be kinder and gentler; 2) distress at the criticisms he received from Drs. Ragland and Abraham at a Wednesday meeting; 3) blame for the schism between pathology and radiology over FNA was on the radiologists; 4) personally unaware of any inappropriate interpersonal relations involving himself; 5) hoped to be recognized by others at KMC as one of the best physicians and directors there; and 6) any complaints about him were “irresponsible attempts by a few inadequate individuals.”

DFJ00243245

Relevance.

148. E-mail to Dr. Kercher from Jadwin, dated 2/1/05, requesting Dr. Abraham be removed from the FNA Committee because she wasn’t (by implication) honest, objective or impartial.

DFJ00316

None.

149. E-mail from Dr. Kercher to Jadwin, dated 2/1/05, telling Jadwin that he was not acting like a team member.

DFJ00317

Relevance.

150. E-mail to Peter Bryan from Jadwin, dated 2/2/05, listing his suggestions for improvement on the FNA issue. Jadwin also states that the radiology department was “substantially at fault” for the conflict between the departments. He requested a formal apology from the radiology department to himself and the pathology department. He also requested (in bold lettering) a public announcement at the next MEC meeting that there are no quality issues involving the pathology department and Drs. Amin, Abraham, Munoz and Naderi should be forced to stand at the podium during the announcement.

DFJ00319320

None.

Page 36 of 45

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151. Exchange of e-mails between Dr. Ragland and Jadwin, dated 2/25/05, in which Jadwin complains about some comments made by the radiologists at the February QM meeting and informing Dr. Ragland to be prepared for Jadwin to request him to call for supporting documentation from radiology or announce that the previous comments were unsupported. Dr. Ragland shot back his displeasure at the continuing conflict between radiology and pathology, and stated that his committee will not become a battleground for this conflict.

DFJ00353354

None.

152. E-mail to Peter Bryan and Dr. Kercher from Jadwin, dated 2/28/05, forwarding Dr. Ragland’s e-mail of 2/25/05 and asserting that because of spelling, grammar, and syntax errors in it that Dr. Ragland may be an “impaired physician” with a “level of intellectual functioning well below the high school graduate level” and thought processes that are “chaotic and almost incoherent.” Jadwin alleges that Dr. Ragland may have a substance abuse, emotional and/or cognitive function disorder, and suggests monitored drug testing and that Dr. Ragland’s patient care duties be monitored as well.

DFJ00355

None.

a) Dr. Ragland heard about the e-mail although he never saw it. He heard that the e-mail was turned over to Dr. Yoo, head of psychiatry. He also heard that Jadwin had contacted the licensing board about him with this same accusation.

Ragland Depo., 8/22/08, pgs. 332:4337:2

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

b) Letter to Dr. Ragland from Jadwin, dated 10/19105, apologizing for past wrongs, although he asserts that he does not know how Dr. Ragland came to dislike him. The irony is that Jadwin’s letter contains many spelling and grammatical mistakes and a Freudian slip” ... and I have never treated you and your patients exceptionally well ...”

[Compare to DFJ00355 above] DFJ00592

Hearsay. Relevance.

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Page 38 of 45

153. Letter to Dr. Sergio Perticucci from Jadwin, dated 3/3/05, complaining about Dr. Perticucci’ s complaints about the pathology department. In particular, Jadwin attempted to assert that an original diagnosis of “atypical metaplasia” was merely a transcription error because the diagnosis should have been “atypical hyperplasia.” Jadwin also called the diagnosis rendered on the same case by Dr. Felix of use “nebulous.” Jadwin called Dr. Perticucci dishonest and demanded an apology.

DFJ00356~ 357

Relevance.

154. E-mail to Dr. Kercher from Jadwin, dated 6/7/05, complaining about Dr. Abraham’s conduct at an MEC meeting and accusing her of an “inappropriate personality defect.”

DFJ00427

None.

155. E-mail to Dr. Kercher from Jadwin, dated 6/27/05, demanding that Dr. Abraham publicly apologize to Jadwin at the next MEC meeting.

DFJ00436

None.

156. Letter to Dr. Roy from Jadwin, dated 2/10/06, demanding apology “meeting my specifications” if alleged (pathology department) deficiencies are not received in 14 days.

DFJ00738

Relevance.

157. Memorandum from Peter Bryan to Jadwin, dated 2/21/06, chastising Jadwin for the tone of voice he used in his letter to Dr. Roy of 2/1 0/06 and stating that “this method... exemplifies why it is becoming increasingly difficult for you to work with key members of the medical staff.”

DFJ00740741; Bryan Depo., 8/14/08, pgs. 137:1144:9

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

158. Email to Peter Bryan from Jadwin, dated 2/23/06, following the meeting of 2/22/06 urging Bryan to take the moral high ground and called Drs. Ragland and Abraham “disgruntled, vindictive individuals.”

DFJ00744745

None.

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159. Exchange of e-mails with Peter Bryan from Jadwin, dated 3/24/06, 3/27/06, 4/5/06, criticizing Karen Barnes for insisting on vicarious liability of staffing agency before placing a temporary pathologist. Also, Jadwin postponed his own surgery indefinitely because his mother was ill.

DFJ00783

None.

160. Memo from Peter Bryan to Jadwin, dated 4/17/06, telling him that he must either work on improving his relationships with staff or step down as chairman of pathology department. Bryan states “You have made many derogatory comments about some of the staff members” and “this apparent lack of insight on your part is at the heart of your inability to meaningfully contribute as a member of the medical staff leadership group.” In Bryan’s Depo., he distinguished between the department running well on a technical level (which he notes in this memo) and Jadwin’s deficiencies as department chair

DFJ00794795; Bryan Depo., 8/14/08, pgs. 231 :9237:25; pgs. 233:2-17 and 237:211

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

161. E-mail from Peter Bryan to Jadwin, dated 4/17/06, responding to an e-mail from Jadwin in which Jadwin pushes an issue of “pathology informatics.” Bryan’s response was stem, “I clearly indicated to you that your proposed solution of a free standing system for pathology was not going to happen. I have repeated this to you many times ... “

0001581

Relevance.

162. Jadwin wanted to delete the “Complete Blood Count” from the laboratory’s test menu and only offer the “Complete Blood Count with Differential.” Gilbert Martinez believed Jadwin’s idea would pose a compliance issue so Martinez took the matter to the Compliance Committee. Both options stayed on the test menu. Martinez felt that Jadwin was being uncooperative in this incident.

Martinez Depo., 4/16/08, pgs. 121:17122: 19

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

Misstates testimony.

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163. Gilbert Martinez described an incident an unannounced inspection occurred and Jadwin was not present. Martinez proceeded to show the inspectors around the laboratory. Jadwin returned, became upset when he discovered the inspectors were there, stated that the inspection had been mishandled, and then said that if Jadwin had a gun, he would shoot someone. Jadwin never apologized to him for making the remark. The incident happened sometime before 2005.

Martinez Depo., 4/16/08, pgs. 127:22130: 3

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

164. Dr. Dutt believed that Jadwin tried to retaliate against Dr. Taylor who is married to Dr. Abraham. Jadwin’s dislike of Dr. Abraham is well-known. For instance, Jadwin refused to make the obvious diagnosis on one of Dr. Taylor’s cases.

Dutt Depo., 8/20/08 pgs. 291 :7-292: 11

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

165. Dr. Dutt reported to Dr. Harris complaints by Dr. Shertukde that Jadwin was angry and hostile toward her. Dutt did so because he was afraid that Dr. Shertukde or Vangie Gallegos would file a case against the County for harassment or hostile work environment based on Jadwin’s behavior.

Dutt Depo., 8/20/08, pgs. 298:23300:24

Misstates testimony.

Improper speculation. Improper opinion. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Hearsay. Improper speculation.

17 18

Meeting on February 22, 2006

19

166. Dr. Abraham recalled how Jadwin insulted her and how he had insulted Dr. Ragland and, in general, that he managed to insult everyone who was there but she did not remember specific statements beyond those directed at her and Dr. Ragland.

Abraham Depo., 8118/08, pgs. 198:24207: 17

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

167. Jadwin insulted, literally, everyone at the meeting face-to-face.

Bryan Depo., 8/14/08, pgs. 109: 12111: 10

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

20 21 22 23 24 25 26

Improper conclusion.

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168. Bryan thanked Dr. Ragland for showing restraint in the face of Jadwin’s insults.

Bryan Depo., 8/14/08, pgs. 156:22157: 12

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

169. Jadwin made attacking statements and charges at attendees of 2/22/06 meeting.

Harris Depo., 8/13/08, pg. 159 :2-13

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

170. Jadwin insulted Dr. Ragland severely at the 2/22/06 meeting.

Harris Depo., 8113/08, pg. 196:7-20

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

171. Jadwin insulted all of the doctors at the meeting, including Dr. Harris.

Harris Depo., 8/13/08 pgs. 230:4232: 13

172. Harris refused to characterize Jadwin’s behavior as crazy but he did offer “excessive” as a description and agreed with Eugene Lee’s adjectives of “unprofessional” and “unreasonable.” Harris said it was the most unprofessional, unreasonable, excessive behavior he has ever seen in a physician.

Harris Depo., 8113/08, pgs. 234:24235: 23 and 305:20308: 22

173. The first incident of Jadwin’s inappropriate conduct was when Jadwin, during this meeting, said Dr. Ragland was incompetent and shouldn’t be the medical staff president.

Ragland Depo., 8/22/08, pg. 16: 12-16

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

174. E-mail from Dr. Ragland to Peter Bryan, dated 2/23/06, stating that the meeting with Jadwin on 2/22/06 was “one of the most distasteful events I have ever participated in.”

0000507

None.

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Improper conclusion.

Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. Improper conclusion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

21 22 23 24 25

Demotion to Staff Pathologist

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175. Pathology Dept. Proctoring Report on Dr. Dutt, dated 1/l8/06, and completed by Jadwin who said that Dr. Dutt’s performance is “responsible and excellent.”

0000903 913

No foundation. Not authenticated. Improper conclusion. Improper opinion.

176. Exchange of e-mails between Dr. Dutt and Jadwin, dated 11/6/06, regarding a container of specimen left sitting out. To remedy the situation, Dr. Dutt instructed that only Evangeline “Vangie” Gallegos was to process the placentas.

DFJ01430

Hearsay. Speculation.

177. E-mail from Evangeline “Vangie” Gallegos to Dr. Dutt, dated 11/6/06, thanking him for his support and complaining about Jadwin interfering in her work area and “creating more work for everybody.” She asked if she could go home early as she was feeling sick.

0000824

Hearsay. Improper conclusion. Improper speculation. Improper opinion.

178. Exchange of e-mails between Dr. Dutt and Jadwin, dated 11/13/06 and 11/14/06, wherein Jadwin requested that he have an assigned assistant and that the assigned assistant be required to notify him when leaving the lab for more than 5 minutes. Dr. Dutt’s response was to deny the need for an assistant as the department had three pathologists and to remark how “demeaning and time consuming” it would be to constantly clock in and out.

DFJ01439 (000084084 1)

Hearsay..

179. E-mail from Dr. Dutt to Jadwin, dated 11/17/06, expressing frustration with Jadwin’s reaction to counseling which is to escalate the situation, blame others, or attack others. Dr. Dutt also promised to find the records where Jadwin did not submit a “rush” case or most of his other cases that day. He also asserted that Jadwin had done this before.

DFJ0144601447 (0000843)

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

180. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, discussing their disagreement on the necessity for privileges for FNA and the necessity for proctoring.

DFJ01448 (0000850)

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

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181. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, reminding him of a rush case that Jadwin failed to process promptly and counseling Jadwin to remember it when criticizing others.

DFJ01449 (000085])

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

182. E-mail from Dr. Dutt to Jadwin, dated 12/4/06, chastising Jadwin for criticizing Dr. Shertukde’s diagnosis without consulting others first; chastising him for refusing to get outside consult on a hard case; and chastising him for failing to remove the sharps from the cutting area when he was done.

0000827

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

a) Minutes of the meeting of the pathology/histology department on 10/17/06. It was noted that Dr. Shertukde was concerned that blades were not being removed once grossing was done. She and Dr. Dutt remove and discard the blades immediately.

0000899

No foundation. Improper conclusion. Improper speculation. Improper opinion.

b) E-mail from Dr. Dutt to Yolanda Figueroa, dated 12/7/06, acknowledging her report that Jadwin had left two long blades and a scalpel out after he was finished. 183. E-mail from Dr. Dutt to Jadwin, dated 12/5/06, regarding Jadwin’s uncooperativeness with him and general failure to adhere to a chain of command.

0000862

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

183. E-mail from Dr. Dutt to Jadwin, dated 12/5/06, regarding Jadwin’s uncooperativeness with him and general failure to adhere to a chain of command.

DFJ01465 (0000856)

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

184. E-mails between Dr. Dutt and Jadwin, dated 12/6/06, arguing over a criticism Jadwin made of a diagnosis that Dr. Shertukde did and involving alleged defamatory and retaliatory statements made by Jadwin. Dr. Dutt tells Jadwin that people are afraid of him because of his hostility and that it is Jadwin’s fault for how he treats others.

DFJ014761478 (0000857858)

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

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0001466

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

186. E-mail from Dr. Dutt to Jadwin, dated 12/7/06, chastising him for commanding Yolanda to treat the placentas when in his e-mail of 11/6/06 (0000825 above) specifically said that only Vangie was to work with placentas.

0000863

Hearsay. No foundation. Improper conclusion. Improper speculation. Improper opinion.

187. Jadwin was uncooperative after returning from leave. He was asked specifically to resume doing the blood bank reviews and he did not do them.

Dutt Depo., 8/20/08, pg. 284:25285:5

The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript.

13

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185. E-mail from Dr. Dutt to David Culberson, dated 12/6/06, stating that he had counseled Jadwin for not sending out a case for consultation that, in fact, turned out to be a missed endometrial cancer and now Jadwin was pushing a lot of cases out for consultation, burdening the staffs time and budget.

12

14

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188. Dr. Dutt, acting Chair of the Pathology Department had concerns that Jadwin was creating a hostile work environment. This prompted meetings with Dr. Perez, David Culberson, and Dr. Harris.

Dutt Depo., 8/20/08, pgs. 286:6289: 1; 290: 14-20

189. Dr. Dutt would try to counsel Jadwin one-on-one but Jadwin would avoid the conversation. He would make an excuse to leave the room or leave the hospital. Because Jadwin made it difficult for Dr. Dutt to talk to him, Dr. Dutt had no alternative but to send his concerns about Jadwin’s work to the Peer Review Committee.

Dutt Depo., 8/20/08, pgs.296:20297:13

190. E-mail to Dr. Dutt from Jadwin, dated 12/6/06, with copies to David Culberson, Dr. Harris and Karen Barnes, alleging that he has been “singled out for non-transparent ‘PCC r review’“ as well as personal attacks, and he requests the KMC administration to initiate a formal review.

DFJ014791480

No foundation. Improper conclusion. Improper speculation. Improper opinion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper conclusion. Improper speculation. Improper opinion. The transcript is not authenticated. It is not a certified copy, it is a condensed transcript for informal attorney use. No reporter certification is attached to the transcript. No foundation. Improper conclusion. Improper speculation. Improper opinion.

None.

Date: December 1, 2008

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/s/ Eugene D. Lee 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] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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