376 P Mil Re Evidence

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LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

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

11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 FRESNO DIVISION 14 DAVID F. JADWIN, D.O.,

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

15 Plaintiff, 16

PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 19- 25.

v. 17 COUNTY OF KERN, et al., 18

Date: June 2, 2009 Time: 8:30 a.m. Courtroom: 3

Defendants. Complaint Filed: January 5, 2007 Trial Date: May 14, 2009

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Plaintiff David F. Jadwin, D.O., hereby moves in limine for an order addressing six emerging evidentiary issues: 1. Exclusion of evidence based on Defendant's misrepresentation to the Court that Dr. Jadwin's competence as a pathologist was not at issue; 2. Exclusion of evidence based on Defendant's misrepresentation to the Court that the reasonableness of the notice of Plaintiff's need for medical leave was not at issue; 3. Exclusion of evidence based on Defendant's misrepresentation to the Court that the USDC, ED Case No. 1:07-cv-00026 OWW DLB ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18

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adequacy of Dr. Riskin's certifications were not at issue.

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4. Exclusion of the deposition testimony of the County of Kern, by and through Philip Dutt,

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M.D. that under some circumstances it is appropriate to punish employees for taking

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medical leave for legitimate purposes;

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5. Exclusion of evidence relevant to Plaintiff's request for injunctive relief; and

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6.

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An instruction limiting evidence admitted as relevant to the so-called Fifth Affirmative Defense to Plaintiff's disability discrimination claim.

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19. Motion in limine to Admit Evidence Establishing Plaintiff's Competence as a Pathologist. Plaintiff hereby moves in limine for inclusion of an instruction to the jury that Plaintiff's

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competence as a Pathologist is conclusively established despite Dr. Dutt's challenges to it during the

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period from October 4 to December 7, 2006.

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Defendant objected to Plaintiff's expert, Lawrence Weiss, testifying as to the inappropriateness

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of Dr. Dutt's challenges to Dr. Jadwin's competence on the grounds that Defendant does not contest Dr.

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Jadwin's competence as a pathologist. However, KMC's former Interim CEO, Mr. Culberson, testified

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that he did rely on the misleading accusations of Dr. Dutt regarding Dr. Jadwin's competence when he

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placed Dr. Jadwin on administrative leave. Nonetheless, Plaintiff's expert, Dr. Weiss, was precluded

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from refuting Dr. Dutt's accusations. Plaintiff respectfully requests that either Defendant be required to

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reduce their representation to an undisputed fact that is jury is instructed to accept as true, or that

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Plaintiff be allowed to establish Dr. Jadwin's competence as a pathologist through the use of Dr. Weiss's

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deposition testimony and/or report.

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20. Motion in limine to Admit Evidence that Plaintiff's Notice to Defendant Re His Medical Leave Was Reasonable.

23 Plaintiff hereby moves in limine for admission of a stipulated fact that Plaintiff's notice of his 24 need for medical leave and an extension of his medical leave was reasonable under the circumstances. 25 Defendant objected to Plaintiff introducing the deposition testimony of KMC's former Director of 26 Human Resources, Sandra Chester, who so testified in deposition on the grounds that Defendant did not 27 contest this issue. Nonetheless, Defendant's proposed jury instructions include a question for the jury on 28 USDC, ED Case No. 1:07-cv-00026 OWW DLB ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18

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whether Plaintiff's notice of his need for medical leave was reasonable. Plaintiff respectfully requests

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that either Defendant be estopped from contesting this issue, and be ordered to reduce their

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representation to an undisputed fact that is jury is instructed to accept as true, or that Plaintiff be allowed

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to establish the reasonableness of Dr. Jadwin's notice of his need for medical leave through the

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testimony of Sandra Chester.

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21. Motion in limine to Admit Evidence that Dr. Riskin's Certifications of Plaintiff's Need for Medical Leave Were Adequate.

7 Plaintiff hereby moves in limine for admission of a stipulated fact that Dr. Riskin's certifications 8 of Plaintiff's need for medical leave were adequate. Defendant objected to Plaintiff introducing the 9 deposition testimony of KMC's former Director of Human Resources, Sandra Chester, who so testified 10 in deposition on the grounds that Defendant did not contest this issue. Nonetheless, Defendant's 11 proposed jury instructions include a question for the jury on whether Plaintiff's notice of his need for 12 medical leave was reasonable, which includes a requirement that Plaintiff's doctor's certifications were 13 adequate. Plaintiff respectfully requests that either Defendant be estopped from contesting this issue, 14 and be ordered to reduce their representation to an undisputed fact that is jury is instructed to accept as 15 true, or that Plaintiff be allowed to establish the adequacy of Dr. Riskin's certifications, and thus the 16 reasonableness of Dr. Jadwin's notice of his need for medical leave through the testimony of Sandra 17 Chester. 18 19

22. Motion in limine to Admit Evidence of Defendant's Admitted Animus towards Employees Who Take Medical Leave.

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Plaintiff hereby moves in limine for admission of the following deposition testimony of the

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County of Kern, by and through Philip Dutt, M.D. that establishes Defendant's animus towards

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employees, such as Plaintiff, who exercise their right to medical leave. [PMK Depo. via Dutt, Vol. 2 at

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243:3-21].

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3 12:28:09 3 Q. What do you think of the notion of taking

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4 12:28:11 4 medical leave off when you're sick?

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5 12:28:16 5 A. Oh, I think -- I think if it's a legitimate

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6 12:28:18 6 reason then people have a right to do it.

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7 12:28:21 7 Q. Do you think people -- do you think it's USDC, ED Case No. 1:07-cv-00026 OWW DLB ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18

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8 12:28:22 8 wrong for an employer to punish an employee for

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9 12:28:25 9 taking medical leave for a legitimate reason?

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10 12:28:28 10 A. Maybe. It would depend on the

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11 12:28:29 11 circumstances.

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12 12:28:30 12 Q. So sometimes it would be okay?

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13 12:28:31 13 A. I don't know the law in that area. That's a

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14 12:28:35 14 legal question.

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15 12:28:36 15 Q. I'm not asking for the law. I'm asking for

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16 12:28:39 16 your opinion on this.

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17 12:28:41 17 A. It would depend on, for example, what led up

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18 12:28:49 18 to the medical leave; whether there were, as I said

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19 12:28:56 19 in this case, previous statements; and it would

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20 12:29:00 20 depend on the nature and legitimacy of the medical

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21 12:29:04 21 condition and the seriousness, for example.

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Over Plaintiff's objections, several of Defendant's witnesses were allowed to testify that they had

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no retaliatory intent when they participated in decisions to take adverse employment actions against Dr.

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Jadwin. However, when Plaintiff attempted to introduce Defendant County's deposition testimony in

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rebuttal, he was precluded from doing so.

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Plaintiff respectfully requests that he be allowed to read the above deposition testimony into the

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record.

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23. Motion in limine to Admit Evidence Supporting Plaintiff's Request for Injunctive Relief.

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Plaintiff moves in limine for admission of evidence that Dr. Dutt was eligible for family leave,

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but did not realize that as soon as his supervisor, Dr. Harris, learned that the leave Dr. Dutt was

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requesting might qualify as "family leave" under CFRA/FMLA, Defendant was required to process Dr.

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Dutt's leave request as "CFRA/FMLA" leave, request certification, and deduct it from his leave balance

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regardless of whether he had vacation or sick time available.

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Because Plaintiff was precluded from introducing this evidence from Dr. Dutt; Plaintiff was deterred from trying to introduce similar evidence from Dr. Naderi. USDC, ED Case No. 1:07-cv-00026 OWW DLB ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18

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Such evidence supports Plaintiff's request for injunctive relief in the form of training of Defendant's managers to proficiency regarding an employee's CFRA/FMLA rights.

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Because the Court will decide whether Plaintiff is entitled to injunctive relief, Plaintiff

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respectfully requests that parties be allowed to submit evidentiary briefs on these issues to the Court.

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24. Motion in limine for a Limiting Instruction Regarding Defendant's So-Called Fifth Affirmative Defense.

6 Plaintiff moves in limine for an order limiting the evidence admitted as relevant to Defendant's 7 so-called Fifth Affirmative Defense to rebuttal of the motivating factor element in Plaintiff's Disability 8 Discrimination Claim. Two days before the end of trial, Defendant has finally provided a statement of 9 the legal basis for the Fifth Affirmative Defense - McDonnell-Douglas. Defendant's evidence should be 10 limited to those reasons for the adverse employment actions that were contemporaneously considered 11 and communicated to Plaintiff. In other words, no evidence other than Plaintiff's "unavailability" is 12 relevant to his removal from his position as Chair of Pathology at KMC and consequent paycut. In the 13 light of Mr. Culberson's testimony, no evidence other than the 11 points contained in Dr. Dutt's email to 14 Mr. Culberson of December 6, 2006 is relevant to Plaintiff's placement on administrative leave. And no 15 evidence other than Mr. Watson's testimony is relevant to the non-renewal of Plaintiff's employment 16 contract given that Defendant averred in discovery that no one made a decision not to renew Plaintiff's 17 contract, so consequently there was no factual basis for any such decision. In other words, all evidence 18 regarding Plaintiff's alleged inadequate communication and interpersonal skills is irrelevant, and the jury 19 should be instructed to disregard any such evidence whatsoever. 20 21 RESPECTFULLY SUBMITTED on June 2, 2009. 22 23 24 25

/s/ Joan Herrington Attorney for Plaintiff DAVID F. JADWIN, D.O.

26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW DLB ORDER ON PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE Nos. 1-18

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